Iowa Employment Law Blog

Video Interview: Discussing Iowa's Pink Locker Room with LXBN TV

LexBlog — Thu, 18 Apr 2013 13:16:13 -0600

Following up on my recent post on the story, I had the opportunity to speak with Colin O'Keefe of LXBN TV regarding the kerfuffle over the pink locker room at Kinnick Stadium. In the interview, Colin and I discuss some of the serious and not-so-serious issues this story presents.

Should We Take Seriously the Claim that Pink Paint in a Locker Room Is Sex Discrimination?

Patrick Smith — Mon, 15 Apr 2013 05:26:26 -0600

Last week, the co-founder of a Minnesota based organization called “Gender Justice” accused the Iowa football team of “pink shaming” its opponents and engaging in what she calls “cognitive bias.” Jill Gaulder, who also happens to be a former UI professor, claims the infamous pink visitor’s locker room at Kinnick Stadium is “sexist”, “homophobic”, and may subject the University to legal liability under Title IX of the federal Civil Rights laws.

The pink locker room was the brainchild of legendary former coach Hayden Fry. When he took over the perennially losing program in 1979, Fry was looking for every edge available. He had once read that pink had a calming effect on people, and thought the pink locker room would calm the Hawkeye’s opponents. But, Gaulder claims Coach Fry also believed many people associate pink with girls’ bedrooms, and consider pink to be a “sissy” color. Gaulder contends the pink walls send the message that it’s “bad to be a girl”, because femininity is supposedly associated with weakness.

It’s easy to laugh off Ms. Gaulder’s claims as a publicity stunt. Most people understand the pink locker room is a joke designed to get attention and distract the opposing team. The anti-discrimination laws don’t protect people from being offended by a subliminal message associated with certain colors (assuming there was such a message here, which is debatable). The law provides a remedy only when a person is subject to some concrete adverse action, or is denied a right or benefit because of gender (or other protected characteristic). Who are the victims here? The Michigan football team? Ohio State? Perhaps Minnesota, which has won only 3 games out of 16 played in Iowa City during the pink locker room era.

But, Ms. Gaulder cannot be so easily dismissed to the extent she is trying to advance the proposition that employment decisions should not be based upon stereotypes, whether gender or otherwise. Many courts, including our own Eighth Circuit, have recognized that an employer is liable under Title VII not just for employment decisions based upon gender, but also based upon stereotypes about how an employee of a particular gender should act. To the extent that a person’s language, dress, or color choices impact employment decisions, employers are well advised to proceed with caution so as to avoid decision making based upon sterotypes.

Court Finds FMLA Interference Even Though Employee Was Not Qualified to Return to Former Job Because of Her Medical Condition

Patrick Smith — Wed, 10 Apr 2013 10:48:57 -0600

FMLA provides a qualifying employee up twelve weeks of job protected leave. That means the employee is entitled to return to the same position held before the leave, or to an “equivalent position” with equivalent pay, benefits, and other terms and conditions. FMLA does not require an employer to restore employment if the employee is unable to perform an essential function of the position because of a physical or mental condition, including the continuation of a serious health condition. But, as the recent case of Dollar v. Smithway Motor Express,Inc. (8^th Cir. 3/27/13) demonstrates, and employers should tread with caution when deciding whether to terminate an employee on FMLA leave in these circumstances.

Christine Dollar was on FMLA leave from her job as a driver manager because of depression and anxiety. She went on leave June 10, and was excused from work until July 9. In the middle of the leave, approximately June 13 or 14, Smithway told Dollar she could not return to the driver manager position because of her poor attendance before she went on FMLA leave (much of which was apparently related to the depression). If she returned to Smithway, she was told her new position would be as a driver recruiter. But, on June 21, Smithway told Dollar it needed to fill the driver recruiter position and could not guarantee that position would be available unless she returned to work immediately. Because her psychiatrist recommended she be off work until July 9, Dollar did not return immediately. Smithway terminated Dollar on July 6.

At trial, Smithway’s defense to the FMLA interference claim was that Dollar’s depression made her unqualified to serve as a driver manager (Notably, Dollar agreed she was not qualified to return to the driver manager job). But, she claimed she should have been returned to the driver recruiter position upon returning from leave. Smithway contended it was not required to hold open the driver recruiter position until Dollar returned to work because FMLA imposes no duty to accommodate an employee by holding open an equivalent position.

The Court skirted the issue whether Smithway was required to hold open the driver recruiter position, and instead found Dollar had already been transferred to the recruiter position at the time of her termination. Therefore, she had the right to “return” to that job (even though it was not a job she had actually performed) upon returning from leave.

The Dollar case shows once again that bad facts can allow an employee to prevail even when the law is technically on the employer’s side. Any time an employer is considering termination of an employee while she is on FMLA leave, the case should be thoroughly vetted with counsel in advance.

Iowa Court of Appeals Rules that ADA Amendments Apply to Iowa Civil Rights Act, Even in the Absence of Legislative Action

Patrick Smith — Thu, 10 Jan 2013 09:41:41 -0600

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

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

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

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

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

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

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

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

Critics are Unfairly Attacking the Iowa Supreme Court's Sex Discrimination Ruling in Nelson v. Knight

Patrick Smith — Thu, 03 Jan 2013 10:18:07 -0600

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

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

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

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

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

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

Rush, Nigut, at Rush on Business;

Thomas, Crane, San Antonio Employment Law Blog

Eric Meyer, at Employer Handbook Blog

Fox Rothchild's California Employment Law

Don't Forget About the Failure to Exhaust Administrative Remedies Defense: Eighth Circuit Holds that it Still Applies to Retaliation Claims, Overruling Precedent to the Contrary

Patrick Smith — Thu, 30 Aug 2012 01:00:40 -0600

Title VII requires an employee alleging unlawful discrimination or retaliation to file an administrative charge with the EEOC (or a similar a state or local agency with authority to seek relief) before bringing a suit in court. EEOC is charged with investigating claims and pursuing conciliation between the employee and employer where appropriate. The purpose of the administrative scheme is to avoid litigation as a first step in the process. It allows a neutral third party to investigate the claim and work toward resolution. Litigation is a last resort for claims that cannot be resolved, or where the employee decides to retain private counsel and pursue the claim him or herself.

The Supreme Court has deemed that EEOC investigation and conciliation is essential to Title VII’s enforcement scheme, and therefore has strictly enforced its requirements. It is not a mere procedural hoop through which a claimant has to jump. Courts have held that, unless EEOC has the opportunity to investigate and conciliate a particular claim, Title VII’s process would be frustrated. Thus, for example, an employee may not file an EEOC charge alleging sex discrimination and then sue for sex discrimination and disability discrimination. EEOC could not have investigated or conciliated the disability discrimination claim because it was not part of the charge, and therefore the employee barred from suing on such a claim.

Despite the strict enforcement of the administrative process, for many years there seemed to be a loophole in the Eighth Circuit for claims in which an employee alleged a retaliatory termination followed closely on the heels of the employee's filing of a discrimination charge. In Wentz v. Maryland Casualty Co., (8^th Cir. 1989), Wentz filed an EEOC charge alleging age discrimination, and was terminated one day later. He did not file a second charge alleging retaliation, but nonetheless in a subsequent lawsuit claimed his termination was in retaliation for filing the age discrimination charge. In evaluating whether Wentz exhausted administrative remedies for the retaliation claim, the test applied was whether the claims in the lawsuit were “like or reasonably related to” charges that were timely filed with EEOC. In the Wentz case, the court held the retaliation claim should not be dismissed because is “grew out of the discrimination charge filed with the EEOC.”

The Eighth Circuit closed this loophole in a recent case involving almost identical circumstances. (Richter v. Advance Auto Parts (8^th Cir. 8/1/2012)). Richter filed an EEOC charge on August 18, 2009. On the part of the form asking about the basis of the discrimination, she checked “race” and “sex”, but did not check “retaliation”. She informed a regional vice president about the EEOC charge on August 23, and was terminated on August 25. Richter did not fie another administrative charge nor amend the charge that was filed August 18. Nonetheless, when she filed a lawsuit, she alleged her termination was in retaliation for filing the August 18, 2009 administrative charge. The district court dismissed the retaliation claim for failure to exhaust administrative remedies, which was affirmed on appeal.

In its opinion in Richter, the court did not expressly state that Wentz was overruled, but in effect that is what occurred. The Court said it had “considerably narrowed [its] view of what is ‘like or reasonably related’ to the originally filed EEOC allegations.” Strict application of the statutory text requires an employee to file a charge for each discrete act of discrimination. In other words, retaliation that occurs after an employee files an EEOC charge is separate and distinct from the discrimination alleged in the charge, and thus requires a new or amended charge.

One judge dissented, arguing that strict application of the exhaustion requirement in these circumstances was a “needless procedural barrier”, and there were policy reasons for following a standard that judges could apply more flexibly. The majority rejected that view, concluding that strictly following the text was the best guarantee of evenhanded administration of the law.

Richter is an important reminder to employers and defense counsel that the administrative charge still matters, and the failure to exhaust defense remains potent in the right circumstances. Some may claim it is unfair for the employer to rely upon a techincal defense that avoids facing the merits of a retaliation claim. However, given the expense and risks of defending these claims through trial, there is nothing unfair about expecting the employee to follow the law's procedural requirements before suing.

Court Applies "Cat's Paw" Theory to Liquidated Damages under FMLA

Patrick Smith — Thu, 23 Aug 2012 08:54:27 -0600

Under the FMLA, liquidated damages are a form of “extra” damage a court may award over and above other damages an employee is awarded. The employer can avoid liquidated damages, however, if it proves the FMLA violation was in good faith, that is, the employer reasonably believed its action did not violate the FMLA.

Marez v. Saint Gobain Containers (8^th Cir., 7/31/12), shows that a decision maker’s good faith is not enough to avoid liquidated damages if the plaintiff relies upon the “cat’s paw” theory to prove liability. Cat’s paw in employment discrimination means an employer can be liable for discrimination even if the decision maker was not biased. It applies if there is evidence a non-decision maker acted with a discriminatory motive and caused the adverse employment action. The most common example is when the decision maker relies upon information or advice given by a biased non-decision maker.

Marez worked as a production supervisor at Saint Gobain plant that made glass beer bottles. On January 28, 2008, Marez notified her supervisor that she would require FMLA leave for her husband’s upcoming surgery; Marez did not know the exact date of the surgery but said it would be “soon.” Marez did not notify anyone else at the company about her leave request, nor did her supervisor. Notably, Marez had been on FMLA leave the previous July and August for several weeks, and there was evidence her supervisor was irritated about her lack of availability during that time.

Two days later, on January 30, Marez was terminated. One of the reasons given for the termination was that Marez had falsified paperwork. Specifically, she had reported on a check sheet that a piece of equipment was functioning when in fact it was “flatlining”, or not reporting data. Marez claimed it was an error and not a deliberate omission. Marez’s supervisor was the one who discovered the paper work was wrong. The supervisor assembled and presented the information about Plaintiff’s paperwork to another member of management. They consulted with the plant manager, and the three of them together made the decision to terminate Plaintiff.

The jury awarded the plaintiff damages of $206,500 for a FMLA violation, and the court added an additional $206,500 as liquidated damages. On appeal, Saint Gobain claimed that the trial court should not have awarded liquidated damages because two of the decision makers, the plant manager and another member of the management team, did not know about Plaintiff’s FMLA request at the time of the termination, and therefore reasonably believed Plaintiff’s termination would not violate the FMLA. In other words, even though Marez could rely upon a “cat’s paw” theory to establish liability under FMLA, Saint Gobain argued it should be not used as a basis for awarding liquidated damages. The Court rejected that argument:

Were we to accept the proposition that the cat’s paw theory applies to determining liability and lost wages but not to liquidated damages, that would have the result of treating less favorably for purposes of damages calculations plaintiffs who utilize the cat’s paw theory than those who do not. We see no basis in the statute for such a result.

The result in Marez is not surprising, given the tendency of courts to extend the cat’s paw theory to all of the laws that govern the employment relationship. This case should reinforce the importance of thorough investigations of the facts and circumstances before termination decisions are made. That includes getting the employee’s side of the story and whenever possible have a disinterested person investigate the facts.

Injunction Against HHS Coverage Mandate Raises Question Whether Employers Have Right to Religious Accommodation

Patrick Smith — Fri, 03 Aug 2012 09:55:48 -0600

Just days before the Health and Human Services contraceptive mandate went into effect, a federal district court in Colorado issued a temporary injunction exempting a Denver based company from its application. (See ruling in Newland v. Sebelius here). The controversial HHS rule requires all employer provided health coverage, with limited exceptions for certain religious organizations, to cover FDA approved contraceptive methods (which include sterilization and abortifacient drugs) at no cost to the employee. Since the publication of the final rule in January, HHS has come under fire for refusing to provide a broader exemption for religious organizations such as hospitals, schools, colleges, and charities. (See our post on the subject here). Nearly 60 different religious organzations, including the University of Notre Dame, have sued HHS Secretary Sebelius to block application of the rule to their organizations.

The Colorado ruling is remarkable, however, because the plaintiff is not a religious organization but a private corporation that manufactures heating, air conditioning and ventilation products. The owners of Hercules Industries are a Catholic family who strives to operate their business consistent with the teachings of the Church. Hercules has a self-insured health plan for its employees that does not cover contraception, abortion, or sterilization. The HHS mandate would have forced Hercules health plan to cover these items effective August 1, 2012.

The Hercules Inudstries case presents a very important question whether a corporation operating in the secular, commerical world has the right to operate consistent with the religious principles of its owners. For decades employees have had the right to exercise their religion in the workplace so long as it does not create an undue hardship to the operation of the employer's business. Hercules Industries does not have the right to refuse to hire non-Catholics or to force its employees to practice the Catholic Faith. Should an employer have a similar right to accomodation from a government rule that imposes an obligation contrary the the religious faith of its owners, so long as it does not interfere with the rights of its employees?

As shown by the recent efforts of several big-city Mayors to ban Chick-Fil-A because of statements made by one of its owners, the issue of an employer’s religious liberty is not limited to contraceptive coverage in health insurance. In the Hercules case, the government took the position that a private corporation engaging in commerce has no religious rights. Senior District Judge Kane rejected that position, at least for now. The temporary injunction means only that the court believes there is a "likelihood of success" on the merits, subject to a final ruling after all the evidence and legal arguments are considered.

Jon Hyman of Ohio Employer's Law Blog posted an excelleing piece several months ago proposing an Employer's Bill of Rights to balance the many rights their employees posess. Perhaps the right of a business owner to practice his or her religion in the workplace could be added to the list.

Eighth Circuit Finds that Public Employee's Gender Discrimination Claim Not Subject to Time Limits of Title VII

Patrick Smith — Wed, 01 Aug 2012 08:07:13 -0600

Crystal Henley enrolled in the Kansas City Police Academy in September 2005. By November 8, she was forced to leave and was not able to complete her training to become a police officer. During her short time at the Academy, Henley claims she was treated more harshly than male trainees, subject to sexual harassment, and even physical assault.

Almost five years later, in October 2010 Henley filed a lawsuit against the Kansas City Board of Police Commissioners and several of the employees and officials of the police academy, alleging sex discrimination and harassment in violation of her right to equal protection under the Constitution. The defendants asked the court to dismiss the suit because Henley had failed to first file an administrative charge with the EEOC, as is required to pursue a discrimination and harassment claim under Title VII. The reason she could not file an EEOC charge, of course, was because too much time had passed—a complainant has only 300 days after the alleged discriminatory conduct. The District Court agreed with the defendants that Henley failed to exhaust her administrative remedies, reasoning that Henley could not “circumvent Title VII requirements by only pleading violations of the Equal Protection Clause [of the Constitution].”

The Court of Appeals reversed the dismissal of Henley’s gender discrimination claims. (See ruling here) While acknowledging that Title VII procedures must be followed for violations of its terms, in Henley’s case, she was relying upon the Equal Protection Clause as the source of her right to be free from gender based discrimination. If a right is secured by the Constitution independent of Title VII, the Court reasoned, a plaintiff does not have to rely upon Title VII’s remedies to pursue such a claim.

The Court did not find that Henley actually asserted a plausible claim for gender discrimination based upon the Equal Protection clause. The case was remanded back to the district court to consider that question. Actually proving the defendants violated her Constitutional rights may be an uphill battle. Nonetheless, this ruling opens new doors gender based discrimination claims for public employees. The most significant practical impact is that potential claims once considered stale because more than 300 days had passed may have new life because of longer limitations periods for Constitutional claims. Public employers should be alert that this case presents yet another employment risk when taking adverse action against employees.

Trouble Begets Trouble

Patrick Smith — Fri, 27 Jul 2012 00:33:42 -0600

Unfortunately, the UI law school is learning this maxim the hard way. After securing a defense verdict last February in an age discrimination lawsuit an aspiring law professor filed, the same person has sued again. This time, Donald Dobkin alleges the UI refused to hire him because of his age and because of his prior lawsuit. Adding insult to injury, the second suit is based upon information the UI disclosed in discovery during the first lawsuit.

Dobkin filed his first lawsuit in 2009. Despite his pending claim, he again applied to the UI during the 2010 hiring cycle, and documents concerning the hiring decisions in 2010 were part of the discovery in the 2009 case. According to Dobkin’s attorney, the faculty committee interviewed a candidate in 2010 that scored 40 points below Dobkin on the law school’s preliminary screening tool that it uses to rank candidates. In the 2009 case, however, the UI claimed that Dobkin was not interviewed because the law school school interviews only the best candidates as shown by the preliminary screening. Whoops.

There was also evidence that a member of the hiring committee considered in deciding not to interview Dobkin that he had a pending discrimination case against the law school. Whoops again.

Takeaways:

While a lawsuit contains only allegations, it should present a teachable moment to the professors on the faculty hiring committee.

First, it is important to remember that the stated reason you give for an adverse employment decision must be the real reason, and not appear to be a reason made up after the fact to justify the decision.

Second, when relying upon screening tools, it is important to apply them consistently. If there is a deviation from a standard practice in the case of a particular candidate, there should be a stated and documented rationale for the deviation.

Lastly, employers must remember that a pending discrimination claim creates an genuine risk of a subsequent retaliation complaint if the pending claims plays a role in an adverse hiring decision. Decision makers must remember that everything they write or put in a e-mail that refers to the pending claim, even if innocent or innocuous, is potential evidence in the next case. Even if you win the first case, it does not mean you are forever out of the woods.

Similarly Situated in All Relevant Aspects

Patrick Smith — Thu, 26 Jul 2012 09:08:00 -0600

Very seldom is there overt evidence an employer discriminated on the basis of race, sex, disability, etc. Most of the time plaintiff employees have to prove their claim by showing they were treated less favorably than similarly situated employees who were not in the protected class. For example, if there is evidence the employer imposed lesser discipline on white employees than a black employee for similar conduct, it may be sufficient to create an inference the black employee was treated differently because of race. A hotly contested issue in most discrimination cases— in discovery, at the summary judgment stage, and during trial—involves determining whether the circumstances of these “other” comparator employees are similar enough to the plaintiff’s circumstances to justify using them as evidence of unlawful discrimination.

In a recent Eighth Circuit decision (Davis v. Jefferson Hosp. Assoc.), the Court reaffirmed the long-standing rule that comparing the plaintiff to any other employee outside the protected class is not enough. Rather, he must show the other employees are “similarly situated in all relevant aspects.” The individuals used for comparison “must have dealt with the same supervisor, have been subject to the same standards, and engaged in the same conduct without any mitigating or distinguishing circumstances.”

The plaintiff in Davis was a staff physician at Jefferson Hospital. The hospital’s credentialing committee investigated the plaintiff because of complaints of abusive and offensive behavior toward staff and patients, as well as problems with quality of care issues, such as keeping accurate and timely charts and responding to calls for patient assistance. The credentials committee ultimately recommended the plaintiff’s privileges be revoked after finding his treatment in four patient death cases fell below the standard of care. The hospital’s board voted unanimously to revoke the plaintiff’s privileges, citing three reasons: poor quality of patient care, improper medical documentation, and unprofessional behavior.

Plaintiff, who is black, sued the hospital for race discrimination. In support of his claim, plaintiff presented evidence that three non-African-American physicians used used profanity and made derogatory comments in front of hospital staff, but were not subject to discipline or a corrective action plan like he was. Plaintiff also produced affidavits of eleven other persons who testified that white physicians had also behaved inappropriately toward hospital staff but were not disciplined. The court ruled that this evidence was not enough to generate an inference plaintiff was discriminated against because of his race, because there was no evidence that any of the white physicians in question had record keeping or quality of care issues as did plaintiff. In other words, while these other physicians had acted unprofessionally without discipline, the fact that they lack similarity in two of the other reasons for plaintiff’s discharge was not enough to prove race was a motivating factor. Case dismissed.

Takeaway from the Davis case: when terminating an employee or taking other adverse action, it is important to identify and document at the time all the reasons for the action. That is the best way to determine whether you are treating similarly situated employees in a consistent manner, and avoids the problem of identifying reasons after the fact.

NLRB Continues Activism with New Web Site

Patrick Smith — Fri, 22 Jun 2012 09:04:16 -0600

As we have written here many times, most private sector employers (over 90%) are not unionized and often don’t consider that their employees may have rights under the labor laws that protect them from termination, discipline, or discrimination.

Specifically, section 7 of the National Labor Relations Act gives employees the right to engage in “protected” and “concerted” activity for the purpose of collective bargaining or other mutual aid or protection. In other words, if employees communicate with each other about wages or working conditions, or take action to change or improve them, they cannot be terminated, disciplined, or discriminated against because of it.

Last week the NLRB launched a web site dedicated to promoting protected concerted activity. The site promotes the agency’s efforts in recent years to litigate protected and concerned activity complaints, and specifically notes that employees have these rights even if they are not in a union.

While nothing in the web site is factually incorrect, it unfortunately is one more step in the NLRB’s march from a neutral agency that enforces the law to an advocate for the rights of employees against employers. From mandating employer posters, trying to change election rules to favor employees (both of which have been struck down by courts) and cracking down on employer social media policies, the NLRB’s credibility as a agency that fairly enforces the law is in serious jeopardy.

Study Shows Plaintiffs in Employment Cases Win at Trial More Often than Not

Patrick Smith — Mon, 23 Apr 2012 09:01:51 -0600

Two Des Moines lawyers, Karin Johnson and Angela Morales, recently wrote in The Iowa Lawyer about a study their firm conducted of employment law trials in Iowa. With the exception of one county (out of 99), there is very little data available to lawyers on trial outcomes in this state, particularly in employment cases. I commend Karin and Angela for their work, and particularly for sharing some of it with the rest of the bar. I expect the study will be frequently relied upon by lawyers, both plaintiff and defense, in evaluating their cases.

Some of the most interesting information from the study includes the following:

· The study was based upon 134 bench and jury trials between 2000 and 2011, in both state and federal courts. Included in the sample were claims involving wrongful discharge, discrimination, and harassment. More unusual types of claims, such as whistleblower, wage claims, and ERISA ,claims were excluded.

· It is not clear whether the 134 cases includes each and every employment cases tried in Iowa during the period in question, although the goal of the study was presumably to capture every case. 134 trials jury trial in eleven years is a fairly low incidence of trials, but nonetheless seems consistent with statistics showing most cases get resolved in ways other than by trial.

· Most interesting was that the plaintiff prevailed 57 percent of the time.

· Damages awarded ranged from a low of $3,000 to a high of $3 million. If the outlying awards (those over $1 million) were eliminated, the average damage award was $179,000.

· In those cases where emotional distress damages were awarded, a vast majority of the time (two-thirds) the award was less than $100,000.

· Punitive damages were awarded in less than half the cases.

· The study focused on awards by a fact-finder (judge or jury) and did not consider any reductions in awards post-trial, application of damages caps, or reversals on appeal. Nor did the awards consider other remedies awarded by the judge post-trial, such as front pay or attorney's fees.

Implicit Bias, Disparate Impact, and Class Actions: Iowa District Court Rules in Favor of the State, but Employers Should Remain Wary.

Patrick Smith — Fri, 20 Apr 2012 13:07:36 -0600

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

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

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

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

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

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

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

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

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

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

Workplace Class Action Blog

Stephanie Thomas, The Proactive Employer

Nyemaster Blog

Boston Employment Discrimination Blog

Des Moines Register

Eighth Circuit Reverses $4.5 Million Sanction Against EEOC

Patrick Smith — Thu, 01 Mar 2012 10:18:53 -0600

Two years ago, Judge Linda Reade of the U.S. District Court for the Northern District of Iowa made headlines when she dismissed an EEOC lawsuit on behalf of 270 current and former female long haul drivers of Cedar Rapids based CRST Van Expedited. What was notable about the decision was not so much the dismissal itself as the order that EEOC pay $4.5 million of the Defendant's attorneys fees. (See our post about the decision here).

The blockbuster sanction against EEOC ended with a whimper last week, when a three judge panel of the Eighth Circuit reversed the attorney fee award.

While the attorney fee reversal is no doubt a significant blow to the Defendant, CRST actually prevailed on most aspects of the appeal. The attorney fee award was reversed because the Court of Appeals also ruled Judge Reade should not have granted summary judgment with respect to claims of two Plaintiffs, and thus was no longer a "prevailing" defendant. However, the grant of summary judgment was affirmed on the dismissals of 268 other purported plaintiffs.

Other than the attorney fee issue, there are two important takeaways from the Circuit Court’s opinion. First, the Court of Appeals held the claims of 67 plaintiffs were properly dismissed because EEOC did not investigate their claims or provide CRST the opportunity to conciliate before filing suit. The Eighth Circuit agreed with Judge Reade that Title VII does not allow EEOC to use the discovery process in a lawsuit to fish for new complainants who had never filed an administrative charge. Unless the employer is given notice of the identity of claimants and provided the opportunity to conciliate with respect to those particular claimants during the administrative phase of the process, no lawsuit will be permitted.

Second, the court affirmed Judge Reade’s holding that the claims of three plaintiffs were barred because they failed to disclose the existence of their sexual harassment claim when they filed for bankruptcy protection. The Court relied upon the doctrine of judicial estoppel, which holds that judicial acceptance of a party’s position in one proceeding bars that party from taking an inconsistent position in another proceeding. In short, by failing to disclose the existence of the sexual harassment claim in the bankruptcy petition, the plaintiffs could not then claim in another court they had a such claim. The panel did not, however, extend the bar of judicial estoppel to claims the EEOC was pursuing in its own name, even if based upon conduct of the individual plaintiffs who were subject to judicial estoppel.

This case is not yet over. The two plaintiffs whose cases were reinstated will now have the opportunity to prove their claims in court. The decision must still be seen as a victory for CRST, however, because the scope of the case is much more manageable than it was before.

NAACP's Criticism of Iowa Civil Rights Commission is Misplaced

Patrick Smith — Tue, 28 Feb 2012 09:58:09 -0600

Two local branches of the NAACP recently issued a report criticizing the Iowa Civil Rights Commission because of the low percentage of “probable cause” findings in discrimination complaints filed with the agency. Although the report was issued December 31, it was recently publicized in a series of three stories appearing over the course of one week in the Des Moines Register (February 16, February 20, and February 21).

The upshot of the report is that the ICRC determined there was “probable cause” discrimination occurred in only 1.5% of the non-housing cases filed during the 15 year period from 1996 to 2001. The vast majority of non-housing cases involve claims of employment discrimination. The NAACP claimed Iowa’s “probable cause” rate was much lower than neighboring states of Nebraska (6.4%), Minnesota (8.2%) and Illinois (15.7%)(the full text of the report can be found here). The NAACP said their study revealed a “systematic dismissal of civil rights complaints at an alarming rate”.

The report was predictably followed by threats of litigation, mea culpas, and finger pointing. ICRC Executive Director Beth Townsend seemed to agree the probable cause rate was too low, but blamed the huge backlog of cases. The Governor blamed previous administrations for allowing a culture to develop at the ICRC where staffers were not focused on their work.

Unfortunately, both the NAACP’s criticism, and the defenses by government officials, miss the mark. While there certainly may be problems at the ICRC, one of them is not a shortage of discrimination claims being pursued against Iowa employers. Nor is there evidence that meritorious claims are being dismissed. What the report fails to accurately present is the impact of what is known as the “right to sue” letter. Unlike many states, the Iowa Civil Rights Act allows a complainant to request the right to sue 60 days after filing a complaint, regardless of the status of the agency’s investigation. Once the “right to sue” is issued, the ICRC closes the case, and the complainant has the right to file a lawsuit in court. A complainant with a strong case typically would prefer to pursue the case in court, because of the right to a jury trial, and the ability to recover attorney’s fees.

Thus, the reason the ICRC issues so few findings of probable cause has very little to do with the agency itself. Rather, it is because the best cases have already been taken out of the system and are being pursued in court. What the ICRC is left with are those cases where the complainant is not able to find an attorney to take on the claim, usually because it lacks merit or there is little economic harm. This represents not a failure of the system, but is precisely how it was designed.

A more accurate presentation of the impact of discrimination claims would be to treat the issuance of a right to sue letter the same as a finding of probable cause. Using this approach, the statistics presented in the NAACP report from 2006-2011 show that, on average, 11.8% of claims result in either a probable cause finding or a right to sue. Rather than the lowest, this is actually the second highest rate among neighboring states.

The NAACP report appears to be more of an effort to score political points than to address the real issues impacting the enforcement of the discrimination laws. I suspect most employees and employers would agree that the existing hybrid system of public and private enforcement is more effective than charging a government agency with pursuing all the claims. If the ICRC cannot handle its existing workload, what would happen if hundreds of additional cases that are now pursued in court would remain within its jurisdiction?

Facebook Firings and Social Media A Top Priority for NLRB Enforcement

Patrick Smith — Tue, 31 Jan 2012 06:00:46 -0600

Last August the National Labor Relations Board Acting General Counsel issued a report detailing the outcome of investigations into 14 cases involving employee use of social media and social media policies.

A second report issued January 24 on the same subject underscores that social media remains a top NLRB enforcement priority. In the preface of this most recent report, acting General Counsel Lafe Solomon writes that, “ these issues and their continued treatment by the NLRB continue to be a 'hot topic' among practitioners, human resource professionals, the media, and the public."

The case summaries contained in the report deal primarily with two subjects: 1) whether an employer’s social media policy is overly broad, in that it subjects employees to adverse action for activity that is protected by the NLRA; and 2) whether a particular termination of an employee because of social media postings violates an employee’s right to engage in protected and concerted activity. I won't go into detail here, but can only echo Jon Hyman when he describes the NLRB's latest foray into social media as "a mess".

Although it has been stated many times, it bears repeating because it is often forgotten: all employers, not just those with a unionized work force, are subject to the jurisdiction of the NLRB. An employee’s involvement in social media adds one more area of inquiry before discipline or discharge of an employee. Even though there are no lawsuits in court or jury trials for NLRA violations, being subject to a NLRB investigation is no picnic. It takes time, energy, and money to respond to these investigations. If your case goes to a hearing, potential remedies include reinstatement of the terminated employee, with back pay, and continued NLRB involvement in policing your employment policies.

Unfortunately for employers, the social media enforcement is one of the ways the NLRB is trying to remain relevant in the face of long standing and continued declines in private sector union activity.

Supreme Court, Executive Branch Take Opposite Approach on Religious Accomodation

Patrick Smith — Mon, 30 Jan 2012 06:57:15 -0600

We have written many times here about an employer’s obligation to reasonably accommodate an employee’s sincerely held religious beliefs, so as not to unlawfully discriminate on the basis of their religion. Indeed, according to EEOC statistics, claims of religious discrimination by employees are increasing at a higher rate than most other forms of discrimination.

Much less discussed, however, is an employer’s right to the free exercise of religion in the face of employment laws that conflict with religious tenets. There are countless institutions in the U.S., including hospitals, schools, charities, fraternal organizations, and colleges and universities, that are affiliated with a religious organization. Collectively, these institutions employ hundreds of thousands (if not more) people. Not all of these employees practice the religion with which their employer is affiliated, and many of them serve people of all backgrounds and faiths. Thus, there can be tension when the law grants rights to employees that conflict with the rights of their religiously affiliated employers to adhere to religious teachings. Jesus famously declared that we should “render unto Ceasar what belongs to Caesar, and to God what belongs to God." But how are these conflicts worked out in light of modern day employment laws?

Just this month, a pair of significant government decisions spotlight the potential conflicts between religious employers and secular laws. On January 12, the Supreme Court held in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, that a Lutheran School’s decision to terminate a teacher cannot be challenged under the Americans with Disabilities Act (ADA). The Court unanimously ruled the Lutheran School was exempt from the ADA under what is known as the “ministerial exception”. In essence, a religious institution has a First Amendment right to decide who is or is not suitable to serve its ministerial functions without court interference.

Just as the Supreme Court’s decision was sinking in, on January 20, the U.S. Department of Health and Human Services issued a final rule mandating that employer provided health insurance cover abortion, sterilization, and contraception, all with no co-pay or other out-of-pocket cost to the employee. The HHS rule contains an exception for religious institutions, but defines that term very narrowly. The only religiously affiliated employers who can opt out of the mandatory coverage are those primarily employ and serve people of the same faith. As a practical matter, this rule does not accommodate religiously affiliated hospitals, charities, and educational institutions. Indeed, one commentator complained the exception is so narrow that Jesus himself would not qualify for it.

In a thoughtful piece, law professor David Skeel writes that while the HHS rule flouts the spirit of Hosanna-Tabor, it may very well comply with its letter, if narrowly construed. In other words, while the Court's ruling was on the side of greater religious accommodation, it is possible to interpret the opinion as applying only to those religious organizations whose purpose is the “inculcation of religious values”. Such a construction would apply to churches and some Catholic schools, but would leave out hospitals and other institutions that serve the general public. Unfortunately, the administration's decision to draw the religious exemption in the HHS rule as narrowly as possible only invites litigation, and ensures these issues will be battled in the courts for years to come. Professor Skeel believe the courts are the worst place to resolve these difficult accommodation issues. He proposes that the better approach is to hash them out legislatively, or even better, allow the affected groups to work out in good faith practical accommodations. Amen.

Political Discrimination Case Involving UI Law School is Making Waves

Patrick Smith — Wed, 18 Jan 2012 10:14:45 -0600

In my practice I frequently represent counties, municipalities, school districts and other public entities. Just like their counterparts in the private sector, public employees are protected against discrimination because of race, sex, age, religion, disability, and other protected statuses. However, public employees have one important right their private sector brethren do not share: the right under the First Amendment to be free of discrimination based upon their political speech and associations.

Most First Amendment employment lawsuits involve claims of retaliatory discharge. A typical case is the newly elected public official who wants to purge the ranks of employees who supported his political opponent in the election and fill the positions with his political supporters. While political affiliation is a legitimate consideration for positions that involve policy making, employees holding jobs that do not involve policy functions are protected from retaliation based upon their political beliefs, even if they conflict with those of the boss.

A recent ruling from Eighth Circuit presented the more unusual case of refusal to hire based upon a person’s political beliefs. Indeed, the case was the first time the Eighth Circuit has addressed the question. Even more intriguing is that the plaintiff is a conservative law professor who claims she was blackballed by the predominantly liberal faculty at the University of Iowa College of Law. The Court’s ruling reinstating the lawsuit that the trial court dismissed on summary judgment has sent shock waves through the legal and higher education communities, as reflected by the widespread national media coverage (WSJ; Fox News; New York Times; Chronicle of Higher Education).

Teresa Wagner alleged she was not hired as a Legal Analysis, Research, and Writing (LAWR) Instructor because of her conservative political views. Wagner, who is a graduate of the UI College of Law, had spent several years working with the National Right to Life Committee, a pro life advocacy group, and the Family Research Council, which advocates for conservative social policy. Unlike the other candidates who applied for the position, Wagner had prior experience teaching Legal Analysis and Writing at another law school. Wagner received many positive comments from both faculty and students who were involved in the interview process, and several recommended that she be hired. Ultimately, the Dean chose to hire another applicant who had no prior successful teaching experience, had never practiced law, and had no legal publications, but who presented himself as a political liberal.

Most interesting about the case was evidence showing that a particular faculty member’s views on abortion may have impacted the decision making. The Court noted that Professor Randall Bezanson had been the primary, vocal opponent to hiring Wagner. Bezanson, as it turned out, served as a law clerk to Justice Blackmun during the term Roe v. Wade was written, had written tributes to Justice Blackmun and his abortion jurisprudence, and published legal articles advocating support for abortion rights. In contrast, part of Wagner’s legal career focused on pro-life advocacy.

Even though Wagner was not offered the full time LAWR position, she was encourage to apply for adjunct openings in the same department. The faculty hiring committee recommended her for an adjunct position, but the Dean chose to hire two others instead. According to one member of the law faculty, the Dean had always followed the faculty’s recommendations in the past when hiring for adjunct positions. The others persons hired for the adjunct positions had no prior law school teaching experience, and one had just graduated from law school.

The legal question the court addressed was whether the Dean’s decision to offer the LAWR position to another applicant was protected by qualified immunity. The Court analyzed the claim under the burden shifting approach adopted by the First Circuit. The Court held Wagner must first show that political affiliation was a “substantial or motivating factor” behind the hiring decision. At that point, the employer must articulate a non-discriminatory basis for the decision and prove the decision would have been taken without regard to the candidate’s political affiliation. Next, the Defendant is required to show the constitutional right that was allegedly violated was “clearly established” at the time of the violation.

The Court concluded that the evidence showed there was a genuine factual dispute whether the Dean would have made the same hiring decision in the absence of Wagner’s political beliefs. The Court also found that the right to be considered for a non-policy making and non-confidential position without regard to one’s political beliefs was clearly established. The question is whether Dean Jones, given the information available to her about Wagner’s political beliefs, and the relative qualifications of the other candidates, reasonably could have believed that not hiring Wagner was lawful.

The Court of Appeals reversed the grant of summary judgment and ordered the case to trial. Notably, on January 10, 2012, the Dean filed a Petition for re-hearing en banc. The Court has not yet ruled on the en banc request. Regardless whether the Court of Appeals agrees to a re-hearing or the case goes to trial, it appears this dispute is far from over. Stay tuned.

Iowa Supreme Court Stems the Tide of Public Policy Wrongful Discharge Claims (At Least for Now)

Patrick Smith — Wed, 14 Sep 2011 09:29:53 -0600

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

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

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

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

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

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

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