Defendant did not violate the Iowa Civil Rights Act for discrimination it was unaware of, Iowa Supreme Court rules

By: Rox Laird on June 29th, 2018

An applicant for a firefighter position is rejected after the employer’s consulting physician concludes the applicant is medically unqualified without disclosing the reason: The applicant had recently had symptoms of multiple sclerosis (MS).

Did the employer violate the disability discrimination provision of the Iowa Civil Rights Act?

Not according to the Iowa Supreme Court in a ruling handed down June 22. The Court, in a 4-2 decision in Deeds v. City of Marion, held that since the city was not aware of Nolan Deeds’ MS diagnosis, it did not violate his rights under the Iowa Civil Rights Act.

“The City is not required to be a mind reader,” Justice Thomas Waterman wrote for the Court. The majority opinion was joined by Chief Justice Mark Cady and Justices Edward Mansfield and Bruce Zager. Justices Brent Appel and David Wiggins dissented. Justice Daryl Hecht did not participate in the case.

The Court also issued a second, one-paragraph, opinion, Deeds v. City of Cedar Rapids, which announced the same decision with the same lineup of justices. Nolan Deeds sued both cities individually after his applications were rejected by both cities for the same reasons.

In the Marion case, the physician, who was employed by UnityPoint clinic, learned of Deeds’ MS diagnosis but did not disclose it to the city, and the city did not inquire as to why the physician said he was medically unqualified.

Thus, the Court held, that meant the city did not violate the Iowa Civil Rights Act, which defines unfair discrimination as “refusing to hire” an applicant “because of” a disability.

“When the City rescinded its job offer to Deeds, the City did not know he had MS,” Waterman wrote. “The City only knew that the physician reported Deeds was not medically qualified for the firefighter position.” Thus, he added, “We conclude that Deeds cannot show the City discriminated against him ‘because of’ his disability.”

The City of Marion had no duty to inquire as to why Deeds was deemed medically unqualified, the Court said, but Deeds did have a duty to request an accommodation for his disability. It cited a ruling from the U.S. Court of Appeals for the Seventh Circuit saying that, otherwise, a disabled employee might keep the disability a secret and later sue for failure to accommodate.

The Court also rejected Deeds’ argument that the UnityPoint physician who conducted the pre-employment physical acted as an agent for the City and, as such, the City had knowledge of his disability. Rather, the Court said, the physician acted as an independent contractor hired by the City and she exercised independent judgment.

Writing in dissent, Justice Appel said a “flat-out” ban on anyone with recent MS symptoms as opposed to an individualized medical assessment “is precisely the kind of stereotyping that the disability-discrimination provisions of the Iowa Civil Rights Act (ICRA) are designed to prevent.”

In this case, the City of Marion avoided the Civil Rights Act with a “don’t ask, don’t tell” approach by contracting out the physical examination to a third party and then not following up with the physician to find out why an applicant is deemed medically unqualified for a job.

Is an employee covered by a collective-bargaining agreement entitled to an exception to the ‘at-will’ employment doctrine?

By: Rox Laird on November 6th, 2017

The Iowa Supreme Court will hear arguments on Nov. 13 in an appeal brought by a former state administrative law judge who contends she was fired for blowing the whistle on her boss for improperly influencing unemployment insurance appeals.

Susan Ackerman, an administrative law judge in the unemployment Insurance Appeals Bureau of Iowa Workforce Development for 15 years, was fired in 2015. The stated reason was misconduct, but Ackerman maintains she was fired in retaliation for her testimony before a legislative committee alleging that ALJs were pressured to decide unemployment cases in favor of employers.

Ackerman sued the State, arguing her termination violated her rights and state law. In the appeal to be heard by the justices next week, she is asking the Supreme Court to reverse a Polk County District Court judge’s ruling dismissing one of her claims in that suit – that she was illegally discharged in retaliation for her efforts to expose what she saw as the Workforce Development director’s abuse of authority.

The Supreme Court has recognized an exception to the doctrine that “at-will” employees generally may be fired without cause in cases where “the discharge would undermine a clearly defined and well-recognized public policy of the state,” such as protecting an employee who publicly exposes mismanagement or illegal activities by an employer.

The trial court held that this exception is not available to Ackerman, however, because she was covered by a collective-bargaining agreement as a member of the American Federation of State, County and Municipal Employees (AFSCME). That union’s agreement says the employer cannot take reprisal action against an employee for disclosing information “which the employee reasonably believes is evidence of a violation of law or rule, mismanagement, a gross abuse of funds, an abuse of authority, or a substantial and specific danger to public health or safety.”

In a brief submitted to the Supreme Court, Ackerman’s legal counsel argues that just because the exception is made to the employment-at-will doctrine does not mean it is limited to at-will employees. “The Iowa Supreme Court has never held as much, nor has the Court ever listed being an at-will employee as an element of the claim,” her counsel argues.

“Employees subject to a [collective bargaining agreement (CBA)], such as Ackerman, should not be barred from pursuing a claim for wrongful discharge in violation of public policy merely because they are subject to a CBA,” the brief argues. “At the very least they should be allowed to plead the claim. Then, at the appropriate fact-finding stage of a case, a trial court would determine if in fact the CBA provides the same protections as afforded by the tort, thereby alleviating the need for access to the claim.”

The State, in a brief in support of Workforce Development submitted by Attorney General Tom Miller, disputes Ackerman’s reading of Supreme Court precedent, saying “this Court clearly and unequivocally recognized the wrongful termination tort as solely a limited and narrow exception to the employment at-will doctrine.”

The Attorney General says there is a good reason for that: “Employees covered under a contract have remedies not available to at-will employees: the ability to not only negotiate the circumstances under which a termination may occur, but also, to pursue remedies to enforce all expressed and/or implied terms of the contract.”

The appeal in Susan Ackerman v. State of Iowa is scheduled for argument at 9 a.m. Monday, Nov. 13. Go to On Brief’s Cases in the Pipeline page to read the parties’ briefs.

Iowa Supreme Court Affirms Defense Ruling in Disparate-Impact Employment Discrimination Case Against State

By: Administrator on July 25th, 2014

By Amanda Atherton

Last week, the Iowa Supreme Court affirmed the district court’s judgment in favor of the state in Pippen v. State of Iowa et al, a class-action employment-discrimination case brought under Title VII and the Iowa Civil Rights Act. The class of over 5,000 was represented by twenty-three African-American plaintiffs who claimed the state’s merit system of employment discriminated against African-Americans in hiring, promotion, and pay. The plaintiffs proceeded on a disparate-impact theory rather than a theory of intentional discrimination and introduced expert testimony about implicit bias. The case has been closely watched as a forerunner on the viability of disparate impact employment claims, particularly those brought under state law, and several amicus briefs were filed by national organizations.

To make a prima facie case of disparate impact under federal law, the plaintiffs needed to show that a particular employment practice had a statistically adverse impact on the protected class. Alternatively, they could have proved that the decision-making process was incapable of separation into discrete employment practices for statistical analysis and that the whole process had an adverse impact.

At trial, the plaintiffs’ expert testified the state’s merit system could be broken down, but rather than trying to do so, the plaintiffs rested on their argument that the process shouldn’t be “sliced and diced” because that would reduce the sample size, thereby lessening the aggregate statistical impact. The defense expert, on the other hand, actually did separate and analyze certain practices, undermining the plaintiffs’ incapable-of-separation argument. The plaintiffs also pointed to deficiencies in the state’s documentation of the hiring process and claimed the hiring files were therefore “inadequate to allow separation for analysis.” However, the plaintiffs did not attempt to review the data in these files; they simply relied on their incompleteness. They further claimed the presence of subjective decision-making elements rendered the entire process inseparable.

The district court, after a lengthy trial, found the plaintiffs had not met their prima facie burden and had also failed to prove causation. Accordingly, it granted judgment in favor of the state.

On appeal, all justices of the Iowa Supreme Court concurred in affirming the district court’s result. Justice Appel wrote for the majority, while Justices Mansfield and Zager joined Justice Waterman’s concurring opinion. The Court agreed the plaintiffs had not proved the state’s process was incapable of separation for analysis. It did not reach the causation issue.

The majority opinion provided a roadmap on the “incapable of separation for analysis” issue, explaining that may be the case when: (1) the substantive features of the decision-making process make it incapable of being separated, such as when the process is wholly subjective; (2) discrete employment practices are so intertwined that statistical analysis of them is no longer meaningful when they are separated; or (3) the employer does not keep sufficient records from which to discern separate practices. The Court also held that decision-making processes do not necessarily have to be broken down by job or by department if the process as a whole cannot be separated. For example, when all hiring decisions are made at the absolute discretion of department managers, the process is not capable of separation even though there are multiple departments at issue. The majority found none of these circumstances applicable to the record.

The concurrence agreed the plaintiffs had not met their burden to prove the employment process was incapable of separation. It also focused on the challenges associated with bringing such a broad class action, as the plaintiffs chose to do, rather than narrowing their focus. It even suggested there was evidence of adverse impact on African-Americans in certain departments and from certain practices, as pointed out by the NAACP in its amicus brief and as indicated in the testimony of the defense expert, but emphasized that those were not the theories advanced by the plaintiffs and the record was not developed with regard to them.

Though the Court ultimately rejected the plaintiffs’ arguments, its problem was not with the viability of disparate-impact claims or the implicit bias theory in general, but rather with the methods of proof chosen by the plaintiffs in this particular case. As the majority stated: “Disparate impact claims may be complex and complicated, but they are not disfavored.”

The majority suggested the analysis could have been different under the Iowa Civil Rights Act than under Title VII if the plaintiffs had argued that a different standard applied under state law—for example, that there was no requirement to identify separate employment practices in a disparate-impact case. However, because plaintiffs relied on the federal interpretations of Title VII, that is what the Court applied.

The majority opinion notably cast doubt on the persuasive value of federal precedent interpreting Title VII in cases brought under the ICRA. The Court ultimately concluded that courts should be skeptical of the reasoning in any federal case construing Title VII narrowly because such a construction is at odds with the ICRA’s statutory mandate that it should be construed broadly. The majority further opined that this is so even when the statutory language of the state law mirrors federal law. The concurrence criticized the majority for “gratuitously undermin[ing] our court’s long-standing practice of relying on federal decisions to interpret equivalent provisions of the Iowa Civil Rights Act,” explaining that such an approach undermines “the stability and predictability of our law.”

Iowa Supreme Court to Reconsider Case of “Irresistible Employee”

By: Administrator on June 25th, 2013

By Ryan Koopmans

The Iowa Supreme Court agreed on Monday to withdraw its December 2012 decision in Nelson v. James H. Knight DDS, P.C. and reconsider the case.  That’s an extraordinary move, which comes six months after the court received national attention for ruling that a male employer does not commit gender discrimination if he fires a female employee at the request of a jealous wife.

Unfair termination does not violate Iowa Civil Rights Act

By: Administrator on December 21st, 2012

[The following summary was written by Nyemaster Goode attorneys Amanda Atherton and Deb Hulett]

Today, the Iowa Supreme Court reaffirmed that an unfair termination decision does not violate the Iowa Civil Rights Act so long as the employer does not discriminate “based upon the employee’s protected status.” Nelson v. James H. Knight DDS, P.C.

This case came to the Court upon Plaintiff’s appeal of the district court’s decision granting summary judgment in favor of the employer. Plaintiff Melissa Nelson, began working in the dental office of Defendant James Knight in 1999. She was employed as a dental hygienist and Knight conceded that Nelson was a good employee.

Knight occasionally mentioned to Nelson that he thought her clothing was inappropriate for work, and sometimes asked her to put on a lab coat. Nelson denied wearing clothing that was tight or revealing, but always put on a lab coat when asked. Knight also made sporadic comments to Nelson about her appearance, such as noting when she wore tight pants and asking her about her sexual experiences. Despite this, Nelson considered Knight a friend and mentor.

During the last six months of Nelson’s employment, she and Knight began sending text messages to each other about non-work-related matters. The Court characterized these texts as “relatively innocuous.”  When Knight’s wife found out the two were texting, however, she confronted Knight and demanded that he fire Nelson. Ms. Knight felt that Nelson posed a serious threat to the Knights’ marriage.

Knight did not believe Nelson had done nothing wrong. He ultimately agreed that it was detrimental to his marriage to be around Nelson every day. He felt he was becoming too attached to her and feared he might attempt to start a sexual relationship with her. Knight and his wife sought counsel from their pastor, who advised Knight to terminate Nelson. Knight terminated Nelson and replaced her with a female employee—in fact, all of the dental hygienists who have worked in Knight’s office have been female.

The Court affirmed the district court’s ruling granting summary judgment in favor of the defendants. In the Court’s view, the termination decision in this case did not violate the Iowa Civil Rights Act because it was not “based on gender itself.” Instead, it was “an isolated employment decision based on personal relations (assuming no coercion or quid pro quo), even if the relations would not have existed if the employee had been of the opposite gender.” The Court found that result is consistent with the Iowa Civil Rights act and its goal “to insure that employees are treated the same regardless of their sex or other protected status.”

The Court acknowledged the plaintiff’s “legitimate concern about a slippery slope.” But here, the Court found that Nelson presented no evidence that Knight terminated her based on a gender stereotype. And the record in this case did not show that Knight had taken adverse employment actions against several female employees because he was concerned about being attracted to them or because his wife demanded—out of jealousy—that Knight terminate them. Nelson did not assert a sexual harassment claim, and the record did not support such a claim. Instead, the Court concluded that the undisputed facts showed that “Nelson was fired because Ms. Knight, unfairly or not, viewed her as a threat to her marriage.”

On Brief

About Us

On Brief is devoted to appellate litigation, with a focus on the Iowa Supreme Court, the Iowa Court of Appeals, and the United States Court of Appeals for the Eighth Circuit.