Important Iowa Supreme Court decision

There is another interesting ruling from the Iowa Supreme Court. This one is essential reading for anyone interested in disparate impact law or in arguing for different legal standards under state and federal discrimination law. The opinion has so many different facets deserving much more attention than is possible in a blog post so the following provides only the highlights.

In Pippen v. State, 12-0913, 2014 WL 3537028 (Iowa July 18, 2014), plaintiffs brought a class action alleging that the state of Iowa unlawfully discriminates against African Americans in employment. The case was brought under Title VII and Iowa state law and alleged discrimination in merit-system positions across 37 departments of state government. After a trial, the court found in favor of the state.

In its opinion, the Iowa Supreme Court tries to grapple with the complicated intersection of disparate impact law and class actions post Dukes. The opinion contains a lengthy discussion of the historical development of federal disparate impact law.

The key discussion in the opinion focused on whether the state’s practices were incapable of separate analysis under Title VII’s disparate impact analysis. The plaintiffs’ evidence was largely aimed at employment practices generally, rather than isolated to a particular practice. The Court recognized several instances where plaintiffs could proceed on class wide allegations on a disparate impact theory without focusing on specific practices, including when employer record-keeping is so shoddy that the record-keeping makes separate analysis impossible or when decisions were made with unfettered discretion across departments. The Iowa Supreme Court held, based on the facts of the particular case, that the plaintiffs did not show under federal law that the available data made it difficult to analyze particular practices. However, the reasoning leading up to this holding offers many different avenues for future claimants to argue that the evidence is incapable of separate analysis.

It also continues to separate Iowa state law from Title VII law. The Court stated: “While Congress passed the Civil Rights Act of 1991 in response to Wards Cove, no similar amendment has been made to the Iowa Civil Rights Act. The fact that Congress enacted a legislative change in response to a binding majority opinion of the United States Supreme Court does not have persuasive force in the interpretation of the Iowa Civil Rights Act. We have not adopted the principles of Wards Cove in the construction of the Iowa Civil Rights Act and are not bound to do so. Congressional reaction to a specific case decided by the United States Supreme Court does not shed light on the meaning of state law when there has been no comparable narrow state court precedent to stimulate a legislative override.” Id. at 15. The Court found that the plaintiffs in this particular case had not argued for a different disparate impact analysis and so the Court declined to provide one.   However, the opinion leaves the door wide open for future plaintiffs to argue that Iowa disparate impact doctrine is significantly different than federal law.

Interestingly, the opinion also posits that based on questions during oral argument in Dukes, Justices Kennedy and Roberts might be interested in a negligence theory of discrimination, as discussed in Professor David Benjamin Oppenheimer’s article, Negligent Discrimination, 141 U. Pa. L. Rev. 899 (1993).

Hat tip: Alex Long

Causation, Price Waterhouse

Causation, Part 9 (Price Waterhouse)

Justice O’Connor’s concurrence in Price Waterhouse plays a crucial role in the development of causation doctrine in discrimination cases. In it, she emphatically declared that Title VII is a statutory tort. In the 2000s, Justices would build on this idea to dramatically change the trajectory of discrimination law and try to align discrimination law (at least facially) to tort law. This idea, that discrimination is a tort, would later play a significant role in how the Supreme Court interpreted causation under the ADEA and the Title VII retaliation provision.

Justice O’Connor’s use of the tort label is problematic in several respects. Justice O’Connor cited no authority for this statement. She engaged in no discussion about what it means for Title VII to be a tort or the relationship between common law torts and Title VII. Justice O’Connor described tort causation as requiring “but for” cause, without noting that the common law also provides other factual cause standards. Her description of tort law is narrow to the extent that she characterized the words “because of” to mean “but for” cause.

While Justice O’Connor believed that causation meant “but for” cause, she disaggregated this question from the question of which party was responsible for proving causation. Justice O’Connor viewed the case as requiring the Court to determine “what allocation of the burden of persuasion on the issue of causation best conforms with the intent of Congress and the purposes behind Title VII.” She also recognized that given the specific ways employment decisions are made, that requiring a plaintiff to prove that a protected trait was a definitive reason for an employment outcome would be “tantamount to declaring Title VII inapplicable to such decisions.”

In her concurrence, Justice O’Connor argued that the plaintiff should not get the benefit of the motivating factor test unless she had direct evidence of discrimination.  In a later case, the Supreme Court would reject this portion of her analysis.  While Justice O’Connor disagreed with the plurality on this direct evidence question, her concurrence generally agreed with the rest of the test enunciated by the plurality.  She agreed that the plaintiff could prevail on a discrimination claim by proving something less than “but for” cause.

However, she conceived the plurality’s test as ultimately getting to the question of “but for” cause through its shifting of burdens from plaintiff to defendant.  If the plaintiff showed a protected trait was a motivating factor in a decision, and the employer responded by showing that it would have made the same decision absent the protected trait, no liability existed because the protected trait was not a “but for” cause of the decision.  While Justice O’Connor believed that Title VII required a “but for” cause standard, she did not think the plaintiff should be entirely responsible for establishing the causal element.



Lexicon, Mixed Motive

By Tenechia Lockhart

Mixed motive discrimination refers to action taken by an employer against an employee where the action is motivated by some discriminatory, illegitimate reason as well as a legitimate business reason. Mixed motive discrimination was articulated by the Supreme Court in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).

In Price Waterhouse the plaintiff argued that her promotion for partnership was postponed because of sex stereotyping. There was evidence that legitimate reasons also may have motivated the employer’s decision. The plurality held that when a plaintiff-employee demonstrated that a discriminatory reason, such as sex, acted as a motivating factor in an employment decision, the burden then shifts to the defendant-employer to demonstrate that it would have made the same decision even if it had not taken the discriminatory reason into account.

The plurality decision drew only four votes. Justice O’Connor’s concurrence potentially limited the plurality’s holding. She opined that the employee had to produce direct evidence that an illegitimate reason was a motivating factor for the employment action to be able to invoke a mixed-motive framework for her claim.

The 1991 Amendments to the Civil Rights Act codified the concept of mixed motive. The language of the statute reads as follows:

Except as otherwise provided in this subchapter, an unlawful employment 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). In Price Waterhouse, the Court held that if the employer proved the same decision defense, then it would completely escape liability. However, when Congress amended Title VII, it changed the effect of the employer’s proof. If an employer proves it would have made the same decision absent the protected trait, it is entitled to a partial defense to damages. 42 U.S.C. § 2000e-5(g)(2)(B). Proof of the defense does not absolve the employer of all liability.

In Desert Palace, Inc. v. Costa, 539 US. 90 (2003), the Supreme Court addressed the question raised by Justice O’Connor’s concurrence about whether direct evidence is needed to proceed on a mixed motive theory under Title VII. It held that direct evidence is not needed for a plaintiff to prevail in a Title VII mixed motive case.

One note of caution about the mixed-motive theory. In both the ADEA and retaliation contexts, the Supreme Court has required the plaintiff to establish that a protected trait was a “but for” cause of an adverse action. Questions remain about whether the mixed motive idea can be used under other statutes.

Disparate Impact, Griggs, Lexicon

Lexicon, Disparate Impact

By Erin Alderson

Disparate impact discrimination occurs when an employer’s business practice has a disproportionate and adverse effect on persons in a protected class. The disparate impact theory of discrimination was first articulated in the Supreme Court case, Griggs v. Duke Power Co., 401 U.S. 424 (1971).

In Griggs, a group of African-American employees sued their employer, a power company, for requiring applicants to possess a high school diploma and a certain test scores to qualify for certain jobs. The District Court and the United States Court of Appeals for the Fourth Circuit held that absent a discriminatory motive the requirements were proper. The Supreme Court held that these practices constituted disparate impact discrimination because the standards were not shown to be significantly related to successful job performance and the requirements disqualified African-Americans at a substantially higher rate than white applicants.

In 1991, Congress codified disparate impact into Title VII. The Civil Rights Act of 1991 added the following language:

(k)(1)(A): An unlawful employment practice based on disparate impact is established under this title only if:

(i)    A complaining party demonstrates that a respondent uses a particular employment practice that causes a disparate impact on the basis of race, color, religion, sex, or national origin and the respondent fails to demonstrate that the challenged practice is job related for the position in question and consistent with business necessity; or

(ii)  the complaining party makes the demonstration described in sub paragraph (c) with respect to an alternative employment practice and the respondent refuses to adopt such alterative employment practice.

This language sets up a three-part test for disparate impact claims under Title VII. First, the plaintiff establishes that an employment practice causes a disparate impact. An employer can overcome a claim of disparate impact discrimination by demonstrating that the employment practice in question is “job related for the position in question and consistent with business necessity” (for Title VII discrimination claims). The plaintiff can still prevail if it can show that the employer could have used an alternative employment practice that did not result in a disparity.

An example may be helpful. Let’s say a city requires all firefighters to have a height of 6 feet and weigh at least 140 pounds. This requirement would have an adverse effect on women. The employer would likely be unable to show that a height and weight requirement is necessary for the job. Rather, if the employer wanted to test strength, the employer should rely on tests that measure it. In this case, height and weight are not a good proxy for strength and are not related to job performance.

Under the Age Discrimination in Employment Act (ADEA), the analysis works differently. The first step is the same as for Title VII cases, where the plaintiff establishes that a particular practice created a disparate impact. However, the employer’s response to this showing is different under the ADEA than it is under Title VII. An employer can overcome a claim of disparate impact discrimination under the ADEA if it demonstrates that the practice was based on a reasonable factor other than age. Smith v. City of Jackson, 544 U.S. 228 (2005). In Meacham v. Knolls Atomic Power Laboratory, the Supreme Court clarified that the employer has the burden of demonstrating that the challenged employment practice is “based on reasonable factors other than age” (RFOA) because it is an affirmative defense. Many employers have successfully used this defense by demonstrating that the practice in question is reasonable. Unlike the “business necessity” defense, which is used in Title VII disparate impact claims, the RFOA defense does not consider whether there are other ways for the employer to achieve its goals which would not result in a disparate impact on a protected class.



New Blog Feature

I have two terrific research assistants, Erin Alderson and Tenechia Lockhart.  Over the next year, they will be writing posts defining key terms in discrimination law.  These posts are designed to present a quick overview of terms for those new to discrimination law or needing a quick refresher.  The posts can be found under the Lexicon heading.  The first post is a post written by Erin on the legal meaning of disparate impact.

Causation, Price Waterhouse

Causation, Part 8 (Price Waterhouse)

In the last post, I discussed the first part of the Price Waterhouse plurality opinion. That part of the opinion did some important work. It noted Congress’ rejection of sole causation. It recognized that the Court needed to make a choice among possible causal standards. It explained “but for” cause and its inherent limits, both theoretical and practical. This portion of the opinion laid the groundwork for a portion of the plurality’s conclusion: that an employee may prevail on a discrimination claim by showing that a motivating factor played a role in an employment outcome.

In this second portion, the plurality tried to balance the interests of employers and employees. With very little explicit reasoning related to Title VII, the Court declared that the balancing of these interests required the Court to create an affirmative defense to liability. It borrowed the contours of this affirmative defense from First Amendment constitutional law and a decision under the National Labor Relations Act.

If an employee shows that a protected trait played a motivating factor in an employment decision, the employee wins the case unless the employer can establish an affirmative defense. The affirmative defense requires the employer to show that it would have made the same employment decision, even if it had not taken the protected trait into account. If the employer establishes the affirmative defense, it faces no liability under Title VII. The Court noted if an employer allowed a protected trait to infect its decisionmaking process, then the employer should bear the risk that the “influence of legal and illegal motives cannot be separated.” 490 U.S. 228, 250 (1989).

The plurality recognized that the idea of causation has at least two distinct components. The first part is the choice of substantive causal standard, whether that standard is sole cause, “but for” cause, motivating factor, or some other causal standard. The second part involves allocating burdens for establishing cause. Price Waterhouse explicitly recognized that there is nothing inherent in the notion of causation that requires the plaintiff to bear the entire causal burden.


As we will explore in upcoming posts, Congress amended Title VII in 1991 in response to Price Waterhouse. Congress rejected the idea that an employer should escape liability if it established the affirmative defense. Instead, proving the affirmative defense entitles the employer to a partial defense to certain damages.

Causation, Price Waterhouse, Uncategorized

Causation, Part 7 (Price Waterhouse)

In the last post, I pointed out the ambiguity in Title VII’s main provision. This post explores that ambiguity further and continues our discussion of Price Waterhouse. In ruling on Price Waterhouse, the Justices issued a plurality opinion, joined by four Justices. Justices O’Connor and White filed separate opinions concurring in the judgment. Three justices (including two on the current court, Justices Kennedy and Scalia) filed a dissenting opinion. Importantly, even though the Court did not issue a majority opinion, six of the Justices agreed to the core points of the plurality opinion.

The Court issued Price Waterhouse at a time when textualism was gaining ground as a statutory construction methodology, but before textualism became as robust as it is in modern opinions. As we proceed through the causation trilogy (Price Waterhouse, Gross, and Nassar), notice the vastly different approaches to statutory construction. Each case is trying to determine the meaning of Title VII. When the plurality addressed the question in Price Waterhouse, it began with the purpose of causation and its relationship to Title VII. The plurality wrote: “The specification of the standard of causation under Title VII is a decision about the kind of conduct that violates that statute.” 490 U.S. 228, 237 (1989). This is very different from later cases, which start with the words “because of” and try to use the dictionary definition of these words as the primary source of meaning for Title VII’s text in conjunction with an analysis of how ambiguities in Title VII’s amendments affected causation.

The plurality opinion also undertook a textual analysis. The plurality noted that Congress specifically rejected a sole causation standard for Title VII. With the sole causation standard off the table, the Court faced several choices. What should the causal standard under Title VII be and who should have to prove the causal standard? In reaching its conclusion, the Court relied heavily on the underlying purpose of Title VII. Reading Title VII’s primary operative provision in its entirety, the Court noted: “We take these words to mean that gender must be irrelevant to employment decisions.” Id. at 240.

Focusing specifically on the statutory words “because of,” the plurality emphatically stated that to “construe the words ‘because of’ as colloquial shorthand for ‘but-for causation,’ . . . is to misunderstand them.” Id. The plurality recognized an inherent problem with “but for” cause. In essence, “but for” cause requires a strange, hypothetical construct. After an event has taken place, the judicial decisionmaker revisits the event and asks whether if a particular factor was absent the event would happen in the same way. If so, the factor was not a “but for” cause of the outcome.

The plurality recognized that “but for” cause fails in cases that are causally overdetermined. These are cases in which two factors are present, but either one individually could have caused in the outcome. To apply the hypothetical construct of “but for” cause in such instances would mean that neither factor was causally related to the outcome.

The plurality also recognized how multi-person decisionmaking would make it difficult for a plaintiff to establish “but for” cause. The decisionmaking process in Price Waterhouse involved at least 32 people, who each submitted an opinion about whether Ms. Hopkins should be promoted to partner. Thirteen partners supported her bid for partnership. Three partners recommended that her candidacy be placed on hold. Eight indicated they did not have an informed opinion about Ms. Hopkins’ candidacy, and eight recommended that she be denied partnership. At the end of this internal process, Ms. Hopkins’ bid for partner was held in abeyance and she was told she could be reconsidered the following year. The following year, the company refused to reconsider her for partner.

The plurality recognized that some partners raised non-discriminatory concerns about Ms. Hopkins’ performance, while other comments appeared to be based on her sex. Given the multi-layered decisionmaking, it would be impossible for the plaintiff to show how each comment and each partner’s motivations affected the eventual outcome. The Court indicated that the employee was not required to tease out how all of the comments related to the employment decision affected the outcome. Rather, she established the required causal connection by showing the employer relied on sex-based considerations when making its decision.

The plurality continued by discussing the inherent tension within employment law. While Title VII prohibits discrimination based on protected traits, the employer maintains the ability to make employment decisions on other lawful grounds. I will turn to this portion of the opinion in the next post.