Linda Pippen, on Behalf of Themselves and All Others Similarly Situated v. State , 854 N.W.2d 1 ( 2014 )

IN THE SUPREME COURT OF IOWA
No. 12–0913
Filed July 18, 2014
LINDA PIPPEN, et al., On Behalf of Themselves and All Others Similarly
Situated,
Appellants,
vs.
THE STATE OF IOWA, et al., and ALL OTHER AGENCIES SIMILARLY
SITUATED IN USING THE HIRING AND PROMOTION OF
ADMINISTRATIVE SERVICES,
Appellees.
Appeal from the Iowa District Court for Polk County, Robert J.
Blink, Judge.
The plaintiffs appeal from an adverse district court judgment after
a trial in a class action brought under both the Federal Civil Rights Act
and the Iowa Civil Rights Act against the State of Iowa and various
executive branch departments, generally alleging that the State
unlawfully discriminates against African Americans in employment.
AFFIRMED.
Thomas A. Newkirk and Leonard E. Bates of Newkirk Law Firm,
P.L.C., Des Moines; J. Bryan Wood of Law Office of J. Bryan Wood,
Chicago, Illinois; and David H. Goldman and Michael J. Carroll of Babich
Goldman, P.C., Des Moines, for appellants.
2
Thomas J. Miller, Attorney General, Jeffrey S. Thompson, Deputy
Attorney General, and Julia S. Kim and Tyler M. Smith, Assistant
Attorneys General, for appellees.
Jill R. Gaulding and Lisa C. Stratton, St. Paul, Minnesota, and
Mark D. Sherinian of Sherinian & Hasso Law Firm, West Des Moines, for
amicus curiae Gender Justice.
Kim M. Keenan, Baltimore, Maryland, for amicus curiae National
Association for the Advancement of Colored People.
Russell E. Lovell II, Des Moines, for amicus curiae Iowa/Nebraska
State Conference NAACP.
Joshua P. Thompson, Sacramento, California, and Aaron T. Oliver
and Jay D. Grimes of Hansen, McClintock & Riley, Des Moines, for
amicus curiae Pacific Legal Foundation.
3
APPEL, Justice.
In this case, we consider an appeal from a district court judgment
after a lengthy trial adverse to the plaintiffs in a class action brought
under both the Federal Civil Rights Act and the Iowa Civil Rights Act
against the State of Iowa and various executive branch departments.
The plaintiffs generally allege that the State of Iowa unlawfully
discriminates against African Americans in employment. For the reasons
expressed below, we affirm the decision of the district court.
I. Factual and Procedural Background.
There are thirty-seven departments within the executive branch of
the State of Iowa. Each exercises its own hiring authority. The State
employs a merit hiring system, which establishes “a system of human
resource administration based on merit principles and scientific methods
to govern the appointment, compensation, promotion, welfare,
development, transfer, layoff, removal, and discipline of its civil
employees, and other incidents of state employment.” Iowa Code
§ 8A.411(1). The Code further directs that “[a]ll appointments and
promotions to positions covered by the state merit system shall be made
solely on the basis of merit and fitness, to be ascertained by
examinations or other appropriate screening methods.” Id. § 8A.411(3).
The Iowa Department of Administrative Services (DAS) is
responsible for ensuring that hiring decisions are made in accordance
with the merit system. See id. § 8A.104(12) (“The director [of DAS] shall
. . . [e]xamine and develop best practices for the efficient operation of
government and encourage state agencies to adopt and implement these
practices.”). DAS is tasked with providing rules for the departments to
follow. See id. § 8A.413(1) (DAS adopts rules for the administration of
the merit employment system). DAS collects statewide data and
4
monitors compliance. In order to comply with the stated goals of the
merit system, DAS has a wide range of options, including retaining
independent consultants.1 Upon request, DAS assigns personnel officers
as human resource advisors to various departments to assist with
employment functions, such as providing materials and training, helping
develop screening tools, and assisting with hiring.
Applicants to executive branch positions, as well as current
employees applying for promotions, submit applications to DAS, either
online or by hard copy. DAS maintains electronic data on every
applicant and application in their database, the BrassRing.2 The district
court summarized the hiring system as employing three separate
decision-making steps: (1) “DAS receives applications for merit-covered
job posting, screens those applications for basic eligibility of the job
classification, and refers eligible applicants to the hiring department”
(emphasis omitted) (referral); (2) “the hiring department screens the
referred applicants for the job-title specific requirements, determines
which candidates to interview” (interview selection); and (3) “the hiring
department interviews the selected candidates and decides which
candidate to offer the job” (hire or promotion).
Although all departments follow the general practices of the merit
system, their practices in the hiring process vary. These varied practices
include: using a second résumé screen, requiring candidates to more
1Violation of the human-resources subchapter of Iowa Code chapter 8A or DAS’s
regulations is a simple misdemeanor. Iowa Code § 8A.458. Further, “[t]he director may
institute and maintain any action or proceeding at law or in equity that the director
considers necessary or appropriate to secure compliance with this subchapter and the
rules and orders under this subchapter.” Id. § 8A.453(1).
2DAS converted to the BrassRing system between 2004 and 2006. Before this,
the State used the AS-400 system.
5
fully explain how their experiences qualify them for a specific job
function, or requiring a typing test. Each department maintains data
relating to each applicant, which is stored in paper hiring files, unlike the
DAS data system, which is electronic. Each paper hiring file contains a
BrassRing registration number so a correlation between a specific job
posting and the applicant’s performance on the screening devices and/or
interview records can be correlated.
In this case, fourteen3 African-American plaintiffs brought a
lawsuit under both Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. § 2000e–2000e-17 (2006), and the Iowa Civil Rights Act of
1965, as amended, Iowa Code chapter 216.
In their petition, the plaintiffs alleged that the State of Iowa,
including the thirty-seven different executive branch departments,
engaged in practices that resulted in a failure to maintain a diverse,
nondiscriminatory workplace through its merit employment system. The
plaintiffs contend that because of the State’s failure to enforce extant
statutory and regulatory policies, a disproportionate number of African
Americans were denied an equal opportunity for employment. They
claim this was the natural unintended consequences of the State’s failure
to follow rules designed to ensure equal opportunity in the workplace
and was not done intentionally or with malice.
Further, the plaintiffs alleged that in May of 2006 they provided
the State of Iowa with a document entitled “Initial Evidentiary Report,”
alleging systemic racial bias and a pattern of retaliation by top managers
and officials of the State of Iowa. The plaintiffs further alleged that the
3The plaintiffs’ lawsuit was filed in October 2007 and subsequently amended
three times, adding nine additional plaintiffs, for a total of twenty-three named
plaintiffs.
6
State hired a consultant to study employment practices in late 2006 or
early 2007 who produced a report known as the CPS Report. The
plaintiffs alleged that the Initial Evidentiary Report and the CPS Report
put the State on notice that the hiring practices of the State imposed
barriers to equal employment opportunities for African Americans.
On September 28, 2010, on stipulation of the parties, the district
court ordered certification of the case as a class action. The class
definition and class claim were:
CLASS DEFINITION: All African American applicants or
employees who sought appointment to or held a merit-
system position with an Executive Branch agency (not
including Board of Regents) at any point from July 1, 2003
through [date of Court’s decision regarding liability].
CLASS CLAIM: Disparate Impact or Adverse Impact
discrimination with respect to hiring and promotion
decisions and/or unequal terms and conditions of
employment associated with those decisions under Title VII
and the Iowa Civil Rights Act arising from subjective,
discretionary decision-making permitted by the State’s
abdication of statutory or regulatory responsibilities and
obligations and/or failure to follow its own policies.
The case came to trial on September 12, 2011. The plaintiffs
offered evidence relating to the efforts of the State to document its
employment practices, expert testimony by a statistical expert, labor
economist Mark Killingsworth, social science testimony from psychology
professors Anthony Greenwald and Cheryl Kaiser, testimony from DAS
representatives and personnel, and anecdotal testimony from various
plaintiffs related to their experience with state government.
In support of the plaintiffs’ claims, Killingsworth testified that
based on his statistical work employing conventional and probit
7
regression analysis4 statistical procedures, African Americans were
treated differently and more disadvantageously than whites with respect
to the referral of applications by DAS for interviews, with respect to the
selection for interviews by various agencies and departments, and with
respect to ultimate hiring. Further, he opined that once hired, African
Americans have lower salaries within a given job title or are hired for job
titles that pay less than others, and were treated differently in
performance evaluations. In making his calculations, Killingsworth only
analyzed applicants who had been deemed by DAS to meet the minimum
qualifications for the job classification and had been referred to
departments. He approached the data from a variety of perspectives, as
his analytical models could include or exclude different variables.
Regarding the separability of the elements in the hiring process,
Killingsworth testified:
[I]t’s not that it’s incapable of being separated, but I think
there are very serious questions about whether it can
reliably be separated, which is a different story.
Mechanically, one could certainly separate it. And I know
[this] because [the State’s] experts have done [it.]
The plaintiffs offered social science evidence through two
psychology professors: Anthony Greenwald and Cheryl Kaiser.
Greenwald’s field of study is implicit social cognition, a phrase which he
introduced in a coauthored article in 1995. According to Greenwood,
implicit bias, also known as hidden or unconscious bias, is a person’s
4The district court described the difference between conventional and probit
regression analysis as follows:
a [conventional] regression analysis seeks to predict or forecast how a
dependent variable might change based upon changes in one or more
independent variables. The probit analysis differs primarily in that the
dependent value in that context may only have one of two values.
8
automatic preference for one race over another. He asserted that it was
possible that implicit bias affected Iowa decision-makers in this case,
although he did not review any of the hiring files, nor any specific
employment decisions relating to any class members. He could not rule
out other race-neutral causes for the statistical imbalance in the State’s
hiring system. In his opinion, even in the best case scenario, bias could
still unconsciously invade the State’s hiring process.
Kaiser studies stereotyping and prejudice and their effects on
decision-making. She testified that she viewed implicit bias as pervasive
and believed all people fall within a spectrum with explicit bias on one
end and limited implicit bias on the other. She opined that training and
accountability, including recordkeeping, are means of reducing implicit
bias and, if used more extensively by the State, would have a positive
effect on reducing the implicit bias in the State system.
Additionally, several class members, referring to documents
relating to their applications for hire or promotion, testified at trial and
offered examples in which, they claim, the hiring system did not function
as intended. These examples included: a qualified African-American
applicant who was not referred to a department by DAS, due to DAS
incorrectly reporting the applicant was not qualified; in some cases,
résumés of African Americans were marked to highlight spelling and
grammatical errors; and some hiring files contained African-Americans’
résumés, but not the screening devices used to score or evaluate them.
The plaintiffs buttressed the testimony of their witnesses with the
CPS Report, a review of the State’s hiring practices commissioned by the
State, prepared by human resources consultants in response to
expressed concerns about racial discrimination in state employment.
The CPS Report found, among other things, that during fiscal years
9
2004–2006, qualified minority applicants were interviewed less
frequently than qualified white applicants (13.46% for minorities and
20.24% for whites), figures which the authors noted “may support the
perception of discriminatory hiring practices.” Further, the report noted
that while African Americans constituted six percent of the total qualified
pool, they represented no more than 2.8% of the total hires for fiscal
years 2004–2006. By comparison, whites represented eighty-eight
percent of the qualified applicants and ninety-one percent of the total
hires. The CPS Report noted that the statistical difference in
employment appeared to arise from the process between the referral step
and the interview step (African Americans were reduced from 5.95%
referred to 3.47% interviewed of the total applicant pool for fiscal years
2004–2006 combined) and the process between the interview step and
the hire decision (African Americans were reduced to 2.82% while whites
increased to 91.52%). According to the CPS Report, “The actual
personnel decisions may create a rebuttable inference of adverse impact.”
It recommended that DAS “institute a policy of regular and systematic
oversight . . . to ensure compliance with [required] policies and
procedures.” The CPS Report cautioned, however, that because the
State’s application tracking system (the BrassRing) did not track
individual people, but rather applications, it was difficult to identify with
any certainty the exact makeup of the applicant pool or the actual
number of applicants.
The State offered evidence related to the decision-making process
in state government. It also offered the testimony of economist Robert
Miller, who was tasked by the State with analyzing Killingsworth’s
findings and examining the employment outcomes in Iowa state
government to determine if African Americans were systemically
10
disadvantaged. Miller found Killingsworth’s reports to be incomplete and
his conclusions not well-founded. He testified that, in his opinion, there
was no statistically significant evidence of system wide racial
discrimination in the merit employment system in the State of Iowa.
Miller also testified that it was possible for the plaintiffs to break down
the aggregate analysis into more discrete consideration of employment
decisions by department or by other classifications.
On April 17, 2012, the district court filed a detailed and thoughtful
fifty-six page decision in favor of the State. The district court first noted
that with regard to the plaintiffs’ first theory, even assuming that “the
components of the decision-making process in this case are not capable
of being separated, [the] Plaintiffs have failed to provide legal authority
for concluding that ‘abdication of statutory or regulatory responsibilities
and obligations and/or failure to follow its own policies’ is a particular
employment practice.” Next, in regards to the plaintiffs’ second theory,
the court found the plaintiffs had not carried their burden of
“demonstrating the inseparability of the employment system components
for analytical purposes.” The court concluded “[t]he former theory fail[ed]
as a matter of law; the latter as a matter of fact.”
Alternatively, looking to the plaintiffs’ statistical and implicit bias
evidence, the district court noted that the plaintiffs failed to prove the
causation element of their disparate impact claim. The plaintiffs
appealed.
II. Standard of Review.
In this appeal of a trial to the court, the standard of review on all
issues is for correction of errors at law and for findings of fact not
supported by substantial evidence. Iowa R. App. P. 6.907; Falczynski v.
Amoco Oil Co., 533 N.W.2d 226, 230 (Iowa 1995). “Evidence is
11
substantial for purposes of sustaining a finding of fact when a
reasonable mind would accept it as adequate to reach a conclusion.”
Falczynski, 533 N.W.2d at 230. We view the substantiality of evidence in
the light most favorable to upholding the trial court’s judgment. Id.;
Fuller v. Iowa Dep’t of Human Servs., 576 N.W.2d 324, 328 (Iowa 1998).
Reversal is required when an error of law or fact materially affects
other findings or rulings. See Falczynski, 533 N.W.2d at 230. “[W]hen
the trial court following a bench trial has denied recovery because a
party failed to sustain its burden of proof on an issue, we will not
interfere with the trial court’s judgment unless we find the party has
carried its burden as a matter of law.” Id.; see Vincent v. Four M Paper
Corp., 589 N.W.2d 55, 62 (Iowa 1999). “We will conclude a party has
carried such a burden only when evidence is so overwhelming that only
one reasonable inference on each critical fact issue can be drawn.”
Falczynski, 533 N.W.2d at 230. We are not bound by the trial court’s
application of legal principles or its conclusions of law. Fuller, 576
N.W.2d at 328. “When the trial court has applied erroneous rules of law
which materially affected its decision, we will reverse.” Falczynski, 533
N.W.2d at 230.
III. Overview of Legal Framework Established by Modern State
and Federal Civil Rights Acts.
A. Context of State and Federal Legislation. The issues raised
in this case cannot be approached without consideration of the larger
context in which they arise. The legacy of slavery and Jim Crow may be
in the past, but their effects cast a shadow into the present. Specifically,
African Americans continue to be underrepresented in many categories
of employment. While the days of “Whites Only Need Apply” signage are
fortunately long passed, institutional barriers to equality of economic
12
opportunity remain intractable. See Susan Sturm, Second Generation
Employment Discrimination: A Structural Approach, 101 Colum. L. Rev.
458, 459–60 (2001) (“Smoking guns—the sign on the door that ‘Irish
need not apply’ or the rejection explained by the comment that ‘this is no
job for a woman’—are largely things of the past. . . . Cognitive bias,
structures of decision making, and patterns of interaction have replaced
deliberate racism and sexism as the frontier of much continued
inequality.”); see also generally Melissa Hart, Subjective Decisionmaking
and Unconscious Discrimination, 56 Ala. L. Rev. 741 (2005); Audrey J.
Lee, Note, Unconscious Bias Theory in Employment Discrimination
Litigation, 40 Harv. C.R.-C.L. L. Rev. 481 (2005). The remedies afforded
under civil rights legislation disparate impact analysis are a critical
component in eliminating barriers or headwinds faced by African
Americans in the employment marketplace.
The purposes of both the Iowa Civil Rights Act and the Federal
Civil Rights Act are designed to address these ongoing problems. The
United States Supreme Court has declared that the primary purpose of
Title VII of the Civil Rights Act of 1964 is “ ‘to assure equality of
employment opportunities and to eliminate those discriminatory
practices and devices which have fostered racially stratified job
environments to the disadvantage of minority citizens.’ ” Int’l Bhd. of
Teamsters v. United States, 431 U.S. 324, 348, 97 S. Ct. 1843, 1861, 52
L. Ed. 2d 396, 423 (1977) (quoting McDonnell Douglas Corp. v. Green, 411
U.S. 792, 800, 93 S. Ct. 1817, 1823, 36 L. Ed. 2d 668, 676 (1973)); see
Connecticut v. Teal, 457 U.S. 440, 448–49, 102 S. Ct. 2525, 2531–32, 73
L. Ed. 2d 130, 137–38 (1982) (explaining Title VII’s purposes). Similarly,
the Iowa Civil Rights Act was enacted “in an effort to establish parity in
13
the workplace and market opportunity for all.” Vivian v. Madison, 601
N.W.2d 872, 873 (Iowa 1999).
B. Historical Development of Disparate Impact. There are two
distinct theories of liability under civil rights laws for discrimination in
employment, namely, cases involving disparate treatment and cases
involving disparate impact. See Int’l Bhd. of Teamsters, 431 U.S. at 335
n.15, 97 S. Ct. at 1854 n.15, 52 L. Ed. 2d at 415 n.15. In a disparate
treatment case, the plaintiff bears the burden of showing he or she has
been harmed by discriminatory animus of the employer. See id. at 357,
97 S. Ct. at 1866, 52 L. Ed. 2d at 429. Proving discriminatory animus is
often a difficult task as it involves probing the subjective motivations of
the decision-maker. Although cases of blatant racism still exist, most
discrimination is more subtle and difficult to demonstrate.
In the alternative, however, a civil rights claim may be brought
based on disparate impact. In a disparate impact case, what matters is
not the subjective motivation of the employer, but the effects of an
employment practice. See Teal, 457 U.S. at 447 n.8, 102 S. Ct. at 2531
n.8, 73 L. Ed. 2d at 137 n.8 (“Experts familiar with the subject now
generally describe the problem in terms of ‘systems’ and ‘effects’ rather
than simply intentional wrongs.” (Internal citations omitted.)); Int’l Bhd.
of Teamsters, 431 U.S. at 335 n.15, 97 S. Ct. at 1854 n.15, 52 L. Ed. 2d
at 415 n.15 (“Proof of discriminatory motive . . . is not required under a
disparate-impact theory.”); Griggs v. Duke Power Co., 401 U.S. 424, 432,
91 S. Ct. 849, 854, 28 L. Ed. 2d 158, 165 (1971) (noting “good intent or
absence of discriminatory intent does not redeem employment
procedures or testing mechanisms that operate as ‘built-in headwinds’
for minority groups and are unrelated to measuring job capability”).
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It is sometimes asserted that disparate impact analysis of civil
rights claims is outside the “core” of civil rights statutes and represents a
novel legal development. See Stewart J. Schwab & Steven L. Willburn,
Reasonable Accommodation of Workplace Disabilities, 44 Wm. & Mary L.
Rev. 1197, 1201 (2003) (characterizing disparate impact cases as “non-
core cases of discrimination under Title VII”). But this is at least
somewhat misleading. Concern about institutional barriers to equal
opportunity in employment predated civil rights statutes and can be seen
at the beginning of the modern civil rights movement. For example,
President Roosevelt issued Executive Order 8802 in June of 1941, which
prohibited discrimination by race by private employers engaged in
government contracting and created a Fair Employment Practices
Commission which monitored broad trends, pushed and cajoled
employers in the war industries, and assessed the bottom line in terms of
overall progress. See Susan D. Carle, How Myth-Busting About the
Historical Goals of Civil Rights Activism Can Illuminate Future Paths, 7
Stan. J. C.R. & C.L. 167, 172–73 (2011); see also Exec. Order No. 8802,
6 Fed. Reg. 3109 (June 25, 1941). Disparate impact claims may be
complex and complicated, but they are not disfavored.
C. Treatment of Disparate Impact Analysis Under Title VII of
the Civil Rights Act of 1964 by the United States Supreme Court.
1. Introduction. Although federal law is not controlling on state
law questions, we begin substantive discussion of disparate impact
analysis with an overview of cases of the United States Supreme Court.
The reason for this is simple: in a series of disparate impact cases, the
Supreme Court has developed doctrine in both majority and dissenting
opinions in considerable detail. Further, one of the claims in this case
was brought under federal law. On the federal law claim, of course, the
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decisions of the United States Supreme Court constitute binding
authority which we must faithfully apply in our interpretation of federal
law. With respect to the state law claim, the reasoning of the United
States Supreme Court opinions, and the dissenting opinions, may well be
persuasive, although it is certainly not binding upon us. As a result,
understanding the range of interpretive options for state courts in
interpreting state law can be enhanced by analysis of majority and
dissenting opinions of the United States Supreme Court.
2. Griggs: A unanimous court’s broad construction of the Federal
Civil Rights Act. The first decision of the United States Supreme Court
which considered a case based on disparate impact was Griggs, 401 U.S.
at 424, 91 S. Ct. at 849, 28 L. Ed. 2d at 158. In Griggs, the Supreme
Court considered a class action alleging that the requirement of a high
school education or passing a standardized general intelligence test as a
condition of employment violated the Federal Civil Rights Act. Id. at 425–
26, 91 S. Ct. at 851, 28 L. Ed. 2d at 161. In Griggs, the plaintiff asserted
that neither “standard [was] shown to be significantly related to job
performance,” that both standards operated to disqualify African
Americans at a substantially higher rate than white applicants, and that
the jobs in question had been previously filled by whites only as a result
of long-standing practice. Id. at 426, 91 S. Ct. at 851, 28 L. Ed. 2d at
161.
A unanimous Supreme Court found for the plaintiffs. As noted by
Chief Justice Burger, “[P]ractices, procedures, or tests neutral on their
face, and even neutral in terms of intent, cannot be maintained if they
operate to ‘freeze’ the status quo of prior discriminatory employment
practices.” Id. at 430, 91 S. Ct. at 853, 28 L. Ed. 2d at 163. In much
quoted language, Chief Justice Burger noted that the Federal Civil Rights
16
Act “proscribes not only overt discrimination but also practices that are
fair in form, but discriminatory in operation.” Id. at 431, 91 S. Ct. at
853, 28 L. Ed. 2d at 164. Further, the Chief Justice noted that “good
intent or absence of discriminatory intent does not redeem employment
procedures or testing mechanisms that operate as ‘built-in headwinds’
for minority groups and are unrelated to measuring job capability.” Id.
at 432, 91 S. Ct. at 854, 28 L. Ed. 2d at 165. Again, the Chief Justice
noted that “Congress directed the thrust of [the Federal Civil Rights Act]
to the consequences of employment practices, not simply the
motivation.” Id. (emphasis omitted).
Griggs clearly established that a civil rights claim could be based
on disparate impact without proving discriminatory animus or
motivation in cases involving objective standardized tests or employment
criteria. See id. at 436, 91 S. Ct. at 856, 28 L. Ed. 2d at 167. But what
about a claim that the exercise of subjective discretion of supervisory
employees has produced illegal discrimination?
3. Watson: The court divided. The first United States Supreme
Court case to consider a federal civil rights claim based upon a subjective
decision-making process was Watson v. Fort Worth Bank & Trust, 487
U.S. 977, 108 S. Ct. 2777, 101 L. Ed. 2d 827 (1988). In that case, an
African American employee of a bank alleged that she had been rejected
in favor of white applicants for four supervisory positions at the bank.
Id. at 982, 108 S. Ct. at 2782, 101 L. Ed. 2d at 837. In Watson, all
participating members of the Supreme Court held that a claim could be
brought based upon the exercise of subjective discretion, but the court
split sharply on the contours and scope of such a disparate impact
claim. Compare id. at 991–99, 108 S. Ct. at 2787–91, 101 L. Ed. 2d at843–48 (plurality opinion), with id. at 1000–11, 108 S. Ct. at 2792–98,
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101 L. Ed. 2d at 849–56 (Blackmun, J., concurring in part and
concurring in judgment).
Speaking for four members of the Court, Justice O’Connor laid out
the stark alternatives presented by the parties. According to the
plaintiffs, if disparate impact analysis were confined to objective tests, an
employer would be able to simply substitute subjective criteria having
substantially identical effects. Id. at 989, 108 S. Ct. at 2786, 101 L. Ed.
2d at 841 (plurality opinion). If so, Griggs would be a dead letter. Id. On
the other hand, according to the defendants, recognizing a claim of
disparate impact in a subjective selection process would make the claims
so impossibly difficult to defend that employers would be forced to adopt
numerical quotas in order to avoid liability. Id. at 989, 108 S. Ct. at
2786, 101 L. Ed. 2d at 842.
Justice O’Connor seemed to agree with the arguments of both
parties. In section IIB of her opinion, which was joined by all members of
the Court, she recognized that Griggs “could largely be nullified if
disparate impact analysis were applied only to standardized selection
practices.” Id. She further wrote that disparate impact analysis is in
principle “no less applicable to subjective employment criteria than to
objective or standardized tests.” Id. at 990, 108 S. Ct. at 2786, 101 L.
Ed. 2d at 842. In addition, Justice O’Connor observed that while an
employer’s policy of leaving promotion decisions to unchecked discretion
of lower level supervisors should itself raise no inference of
discriminatory conduct, it does not follow that “supervisors to whom this
discretion is delegated always act without discriminatory intent.” Id. In
addition, in an observation of particular interest in this case, Justice
O’Connor noted that even without overt discriminatory intent, “the
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problem of subconscious stereotypes and prejudices would remain.” Id.
at 990, 108 S. Ct. at 2787, 101 L. Ed. 2d at 842.
Justice O’Connor then turned to the employer’s concern in parts
IIC and IID of her opinion. Now writing for only four members of the
Court, she pivoted to express concerns about the use of “bare statistics”
in a subjective decision-making case that an employer could rebut only
upon a showing of “business necessity” or “job relatedness.” Id. at 991–
93, 108 S. Ct. at 2787–88, 101 L. Ed. 2d at 843–44 (citations and
internal quotation marks omitted). She expressed concern that
employers would find it difficult to validate subjective selection criteria
and impossible to defend and, as a result, would engage in a
surreptitious quota system. Id. at 992–93, 108 S. Ct. at 2787–88, 101 L.
Ed. 2d at 843–44. She observed that it would be “completely unrealistic
to assume that unlawful discrimination is the sole cause of people failing
to gravitate to jobs and employers in accord with the laws of chance.” Id.
at 992, 108 S. Ct. at 2787, 101 L. Ed. 2d at 843. She further noted that
“[i]t would be equally unrealistic to suppose that employers can
eliminate, or discover . . ., the myriad of innocent causes that may lead
to statistical imbalances” in the workplace. Id.To avoid impossible defenses and surreptitious quotas, Justice
O’Conner went well beyond the question posed in the petition for writ of
certiorari5 to undertake what she called a “fresh and somewhat closer
5The question posed in the Petition for Writ of Certiorari was: “Is the racially
adverse impact of an employer’s practice of simply committing employment decisions to
the unchecked discretion of a white supervisory corps subject to the test of Griggs v.
Duke Power Co., 401 U.S. 424 [91 S. Ct. 849, 28 L. Ed. 2d 158] (1971)?” 487 U.S. at
1011, 108 S. Ct. at 2797, 101 L. Ed. 2d at 856 (Stevens, J., concurring). Justice
Stevens, in a separate opinion concurring with the judgment, considered it unwise for
the court to engage in a “fresh” interpretation of prior cases in light of the narrow
question presented. See id. at 1011, 108 S. Ct. at 2797–98, 101 L. Ed. 2d at 856.
19
examination” of the evidentiary standards that apply in disparate impact
cases. Id. at 994, 108 S. Ct. at 2788, 101 L. Ed. 2d at 844. She began
by emphasizing that a plaintiff must identify a “specific employment
practice” that is challenged. Id. at 994, 108 S. Ct. at 2788, 101 L. Ed. 2d
at 845. She then turned to causation. Id. at 994–95, 108 S. Ct. at 2789,
101 L. Ed. 2d at 845. She emphasized that statistical disparities must
be “sufficiently substantial that they raise . . . an inference of causation.”
Id. at 995, 108 S. Ct. at 2789, 101 L. Ed. 2d at 845. In a footnote,
Justice O’Connor noted that lower courts have sometimes looked to the
EEOC’s Uniform Guidelines on Employee Selection Procedures and
adopted an enforcement rule that an inference of discrimination could
not be drawn unless members of a particular race, sex or ethic group are
selected at a rate less than four-fifths of the group with the highest
selection rating. Id. at 995 n.3, 108 S. Ct. at 2789 n.3, 101 L. Ed. 2d at845 n.3. Justice O’Connor noted that this method “has not provided
more than a rule of thumb for the courts.” Id.Justice O’Connor next cautioned that courts should not assume
“that plaintiffs’ statistical evidence is reliable.” Id. at 996, 108 S. Ct. at
2790, 101 L. Ed. 2d at 846. According to Justice O’Connor, weaknesses
can include small or incomplete data sets, inadequate statistical
techniques, and applicant pools “containing individuals lacking minimal
qualifications.” Id. at 996–97, 108 S. Ct. at 2790, 101 L. Ed. 2d at 846.
Justice O’Connor thus stressed that in disparate impact cases,
employers have the opportunity to attack the quality of the plaintiff’s
statistical evidence and the inferences that may be drawn from it. Id. at
996–97, 108 S. Ct. at 2790, 101 L. Ed. 2d at 846–47.
Justice O’Connor next turned to the nature of the business
necessity defense. Id. at 997–98, 108 S. Ct. at 2790–91, 101 L. Ed. 2d at
20
847. Although Griggs stated that the burden of showing business
necessity rested with the defendant, Justice O’Connor wrote that the
burden of proving discrimination always rests with the plaintiff at all
times. Id. at 997, 108 S. Ct. at 2790, 101 L. Ed. 2d at 847. According to
Justice O’Connor, the plaintiff now had the burden of showing other
tests or selection devices would serve the employer’s legitimate interest.
Id. at 998, 108 S. Ct. at 2790, 101 L. Ed. 2d at 847.
Justice Blackmun, joined by two colleagues, took exception to
Justice O’Connor’s notion that the burden of proof and production in
disparate impact cases remained with the plaintiff on the business
necessity defense. Id. at 1002–03, 108 S. Ct. at 2793, 101 L. Ed. 2d at
850 (Blackmun, J., concurring in part and concurring in the judgment).
Justice Blackmun maintained that in disparate impact cases, a prima
facie case is established by showing a significant statistical disparity. Id.
at 1004, 108 S. Ct. at 2794, 101 L. Ed. 2d at 851. Once an employment
practice is shown to have discriminatory consequences, according to
Justice Blackmun, an employer can escape liability only if it persuades
the court that the selection process has “a manifest relationship to the
employment in question.” Id. (internal quotation marks omitted). Even if
such a relationship is present, according to Justice Blackmun, the
plaintiff may show that “other selection processes that have a lesser
discriminatory effect could also serve . . . the employer’s [legitimate]
business needs.” Id. at 1005–06, 108 S. Ct. at 2795, 101 L. Ed. 2d at
852.
Justice Blackmun was also concerned about language in Justice
O’Connor’s opinion suggesting that “[i]n the context of subjective or
discretionary employment decisions, the employer will often find it easier
than in the case of standardized tests to produce evidence of a manifest
21
relationship to the employment in question.” Id. at 1006, 108 S. Ct. at
2795, 101 L. Ed. 2d at 853 (internal quotation marks omitted). Justice
Blackmun asserted that “[a]llowing an employer to escape liability simply
by articulating vague, inoffensive-sounding subjective criteria would [do
a disservice to the federal statute]’s goal of eradicating discrimination in
employment.” Id. at 1009, 108 S. Ct. at 2797, 101 L. Ed. 2d at 855.
In sum, the Watson opinions clearly stood for the proposition that
disparate impact could, at least in some circumstances, apply to
subjective employer decision-making. An evenly divided court, however,
had different visions of the scope and contour of disparate impact
analysis on subjective decision-making. The plurality, joining Justice
O’Connor, was prepared to modify the burdens of proof in order to
enhance the ability of an employer to defend disparate impact claims
arising from subjective decision-making, while Justice Blackmun feared
the modification of law proposed by Justice O’Connor would provide an
escape hatch for employers from potential liability.
4. Wards Cove: Narrow construction prevails. A year after Watson
was decided, the Supreme Court decided Wards Cove Packing Co. v.
Atonio, 490 U.S. 642, 109 S. Ct. 2115, 104 L. Ed. 2d 733 (1989),
superseded by statute on other grounds, 42 U.S.C. § 2000e–2(k), as
recognized in Wal-Mart Stores, Inc. v. Dukes, 564 U.S. __, 131 S. Ct.
2541, 180 L. Ed. 2d 374 (2011). In that case, Justice Kennedy, who did
not participate in Watson, tipped the balance. In Wards Cove, Justice
Kennedy joined an opinion by Justice White which essentially converted
the approach of the plurality opinion of Justice O’Connor in Watson into
a majority opinion in Wards Cove.
Wards Cove dealt with employment practices of two companies
that operated salmon canneries in remote areas of Alaska during the
22
salmon runs in the summer months. Id. at 646, 109 S. Ct. at 2119, 104
L. Ed. 2d at 744. Jobs at the canneries fell into two general categories,
“cannery jobs” and “noncannery jobs.” Id. at 647, 109 S. Ct. at 2119,
104 L. Ed. 2d at 745. Most cannery jobs were nonskilled positions,
while, conversely, most noncannery jobs were classified as skilled
positions. Id. The cannery jobs were filed predominantly by nonwhites,
while the noncannery jobs were filled predominantly with white workers.
Id. at 647, 109 S. Ct. at 2119–20, 104 L. Ed. 2d at 745. The canneries
operated separate dormitories and separate mess halls for the cannery
and noncannery workers. Id. at 647, 109 S. Ct. at 2120, 104 L. Ed. 2d
at 745. The district court found in favor of the defendants on all
disparate impact claims, and a panel of the Court of Appeals for the
Ninth Circuit affirmed, but an en banc hearing of the Ninth Circuit held
that “[o]nce the plaintiff . . . has shown disparate impact caused by
specific, identifiable employment practices or criteria, the burden shifts
to the employer.” Id. at 648, 109 S. Ct. at 2120, 104 L. Ed. 2d at 746(internal citations omitted). On remand to the original panel, the court
held that the plaintiffs had made out a prima facie case of disparate
impact in hiring for both skilled and unskilled noncannery positions and
remanded the case to the district court to determine if the employer
could meet its burden of showing business necessity. Id. at 649, 109 S.
Ct. at 2120, 104 L. Ed. 2d at 746. Because the case raised issues upon
which the Court was evenly divided in Watson, the Supreme Court
granted certiorari. Id. at 649–50, 109 S. Ct. at 2121, 104 L. Ed. 2d at
747.
As previously mentioned, the majority opinion by Justice White in
Wards Cove basically converted Justice O’Connor’s plurality opinion in
Watson into a majority opinion. Compare Watson, 487 U.S. at 982–1000,
23
108 S. Ct. at 2782–92, 101 L. Ed. 2d at 837–48 (plurality opinion), with
Wards Cove, 490 U.S. at 645–61, 109 S. Ct. at 2118–27, 104 L. Ed. 2d at744–54. The conversion of Justice O’Connor’s views from plurality
opinion to precedent drew a sharp rejoinder from the minority. Justice
Blackmun, ruing the outcome, declared that “a bare majority of the
Court takes three major strides backwards in the battle against race
discrimination.” Wards Cove, 490 U.S. at 661, 109 S. Ct. at 2127, 104 L.
Ed. 2d at 754 (Blackmun, J., dissenting). He questioned “whether the
majority still believes that race discrimination—or, more accurately, race
discrimination against nonwhites—is a problem in our society, or even
remembers that it ever was.” Id. at 662, 109 S. Ct. at 2127, 104 L. Ed.
2d at 755. Justice Stevens’ dissent emphasized the role of federal courts
and agencies in promoting the national goal of “eliminating barriers that
define economic opportunity not by aptitude and ability but by race,
color, national origin, and other traits that are easily identified but
utterly irrelevant to one’s qualification for a particular job.” Id. at 662–
63, 109 S. Ct. at 2128, 104 L. Ed. 2d at 755 (Stevens, J., dissenting).
According to Justice Stevens, “The changes the majority makes today,
tipping the scales in favor of employers, are not faithful to [established
disparate impact] principles.” Id. at 673, 109 S. Ct. at 2133, 104 L. Ed.
2d at 762. Even for an often divided Supreme Court, the holdings in
Wards Cove can only be characterized as bitterly contested.
It should be emphasized that nothing in the language of Title VII
compelled the result in Wards Cove or the position of the dissents.
Instead, as one commentator has noted, the battle over proper
interpretation of open-ended language of Title VII was over
understandings about “whether discrimination is still happening” in the
modern workplace, about “how it manifests itself,” and about how society
24
should address such concerns. See Sandra F. Sperino, Revitalizing State
Employment Discrimination Law, 20 Geo. Mason L. Rev. 545, 546 (2013)
[hereinafter Sperino, Revitalizing]. It seems fair to say that the majority
on the Supreme Court saw racial discrimination in employment as
primarily a relic of the past that does not require broad remedial
measures, while the minority saw racial discrimination more like an
intractable and enduring part of the American landscape.
5. The Civil Rights Act of 1991: Congress reacts to narrow
construction by the Supreme Court. Because it was decided over two
decades ago, it is easy to forget the controversy that Wards Cove
engendered. Civil rights advocates were outraged by the decision and
other decisions of what seemed to be an increasingly hostile Supreme
Court. The decision in Wards Cove was compared to the 1883 Civil
Rights Cases and was said to foretell the end of the Second
Reconstruction that commenced with Brown v. Board of Education, 347
U.S. 483, 74 S. Ct. 686, 98 L. Ed. 873 (1954), and the passage of the
Civil Rights Act of 1964. See Robert Belton, The Dismantling of the
Griggs Disparate Impact Theory and the Future of Title VII: The Need for a
Third Reconstruction, 8 Yale L. & Pol’y Rev. 223, 247–49 (1990).
In response, Congress passed legislation overruling Wards Cove
and other 1989 Supreme Court rulings in the Civil Rights Act of 1990.
S. 2104, 101st Cong. (1990); see 136 Cong. Rec. S991–01 (1990)
(statement of Sen. Kennedy) (“In the past year, however, the Supreme
Court has issued a series of rulings that mark an abrupt and
unfortunate departure from its historic vigilance in protecting civil rights.
... The Civil Rights Act of 1990 is intended to overturn these Court
decisions and restore and strengthen these basic laws.”); see also
Philip S. Runkel, Note, The Civil Rights Act of 1991: A Continuation of the
25
Wards Cove Standard of Business Necessity?, 35 Wm. & Mary L. Rev.
1177, 1177 n.5, 1186 (1994)6 [hereinafter Runkel] (“Against this
background, Congress attempted to overturn Wards Cove with a new
civil rights bill in 1990.”). President Bush, however, vetoed the measure.
136 Cong. Rec. S16,562 (1990) (recording President Bush’s veto). The
Senate attempted to override the veto, an effort which failed to meet the
two thirds vote required in the Senate by one vote. 136 Cong. Rec.
S16,589 (1990) (recording final tally of 66 to 34). Although very large
margins in both houses wished to overturn Wards Cove, the effort failed
by one vote.
One provision of the Civil Rights Act of 1990 is particularly
noteworthy for the discussion in this case. The vetoed bill expressly
addressed the situation where an employer fails to keep sufficient
6Footnote 5 states:
Civil rights advocates wanted to overturn five Supreme Court
decisions that worked to restrict employees’ ability to successfully sue
employers over workplace discrimination. The most important of these
Supreme Court decisions was Wards Cove Packing Co. v. Atonio, 490 U.S.
642 (1989). . . . Other important cases included: Patterson v. McLean
Credit Union, [491 U.S. 164, 188, 109 S. Ct. 2363, 2379, 105 L. Ed. 2d
132, 158 (1989)] (holding that discrimination in the performance of
employment contracts is not prohibited explicitly under existing federal
law); Lorance v. AT&T Technologies, Inc., [490 U.S. 900, 911, 109 S. Ct.
2261, 2268, 104 L. Ed. 2d 961, 975 (1989)] (limiting the previous
interpretation of federal law regarding the ability of workers to challenge
discriminatory seniority systems); Martin v. Wilks, [490 U.S. 755, 759,
109 S. Ct. 2180, 2183, 104 L. Ed. 2d 835, 842 (1989)] (expanding the
ability of workers not affected by discrimination to challenge agreements
made between previously discriminatory employers and the
discriminated party); and Price Waterhouse v. Hopkins, [490 U.S. 228,
258, 109 S. Ct. 1775, 1795, 104 L. Ed. 2d 268, 293 (1989)] (holding that
employment decisions based on both discriminatory and non-
discriminatory reasons may be valid if the employer proves it would have
made the same decision based solely on the non-discriminatory factors).
Runkel, 35 Wm. & Mary L. Rev. at 1177 n.5.
26
records to allow for disparate impact analysis. The relevant provision
stated:
(iii) the complaining party shall be required to demonstrate
which specific practice or practices are responsible for the
disparate impact in all cases unless the court finds after
discovery (I) that the respondent has destroyed, concealed or
refused to produce existing records that are necessary to
make this showing, or (II) that the respondent failed to keep
such records . . .
S. 2104, 101st Cong. § 4(k)(B)(iii).
A group of moderate Republican Senators, however, determined
that notwithstanding the failure to override the President’s veto, a
compromise could be struck between Congress and the President. See
Runkel, 35 Wm. & Mary L. Rev. at 1198. In the end, after an intense
period of diplomacy between warring factions, Congress passed the Civil
Rights Act of 1991. Pub. L. No. 102-166, 105 Stat. 1071 (1991) (codified
at 42 U.S.C. § 2000e to 2000e-16 (Supp. III 1991)). According to the
statute, the purpose of the Act was “to codify the concepts of ‘business
necessity’ and ‘job related’ enunciated by the Supreme Court in Griggs v.
Duke Power Co., . . . and in other Supreme Court decisions prior to
Wards Cove Packing Co.” and to “respond to recent decisions of the
Supreme Court by expanding the scope of relevant civil rights statutes in
order to provide adequate protection to victims of discrimination.” Id.
§ 3(2), (4). The Act also addressed the Wards Cove ruling regarding the
general requirement of identification of particular employment practices.
Id. § 105(a) (codified at 42 U.S.C. § 2000e-2(k)(1)). While Congress
generally required that a plaintiff identify particular employment
practices that cause disparate impact, Congress also provided that the
decision-making process could be challenged as a whole under certain
circumstances. Specifically, Congress provided:
27
With respect to demonstrating that a particular employment
practice causes a disparate impact . . . the complaining party
shall demonstrate that each particular challenged
employment practice causes a disparate impact, except that
if the complaining party can demonstrate to the court that
the elements of a respondent’s decisionmaking process are
not capable of separation for analysis, the decisionmaking
process may be analyzed as one employment practice.
Id. § 105(a) (codified at 42 U.S.C. § 2000e-2(k)(1)(B)(i)).
The language in the Civil Rights Act of 1991 did not include the
specific language regarding record keeping that was present in the
unsuccessful Civil Rights Act of 1990, but the general language used in
the Civil Rights Act of 1991 to establish an exception to the identification
of particular employment practices was stated in terms broad enough to
cover situations where an employer fails to keep records.
6. Wal-Mart: Sharp divisions again. The last significant United
States Supreme Court case regarding disparate impact is Wal-Mart
Stores. In this case, the Supreme Court considered a nationwide class
action brought by female employees on behalf of some 1.5 million current
and former female employees of Wal-Mart stores. Wal-Mart, 564 U.S. at
___, 131 S. Ct. at 2547, 180 L. Ed. 2d at 385. The employees claimed
that local Wal-Mart managers exercised their discretion over pay and
promotions disproportionately in favor of men, causing an unlawful
disparate impact under the Federal Civil Rights Act. Id. The district
court certified the class and the Ninth Circuit affirmed. Id. at ___, 131 S.
Ct. at 2549, 180 L. Ed. 2d at 388.
On appeal, a bare majority of the Supreme Court reversed. In an
opinion written by Justice Scalia, the majority held that the class should
not have been certified under the applicable federal rules. Id. at ___, 131
S. Ct. at 2556–57, 180 L. Ed. 2d at 395–96. The class certification
question, however, was intertwined with the merits of the case. Id. at
28
___, 131 S. Ct. at 2552, 180 L. Ed. 2d at 391. Justice Scalia stressed
that allowing discretion by local managers is the opposite of a uniform
pattern or practice that would provide commonality needed for a class
action. Id. at ___, 131 S. Ct. at 2554, 180 L. Ed. 2d at 392. Justice
Scalia noted that “[i]n a company of Wal-Mart’s size and geographic
scope, it is quite unbelievable that all managers would exercise their
discretion in a common way without some common direction.” Id. at ___,
131 S. Ct. at 2555, 180 L. Ed. 2d at 393. Justice Scalia rejected the
“social framework analysis” as not offering a sufficient basis for finding
commonality across the class. Id. at ___, 131 S. Ct. at 2554–55, 180 L.
Ed. 2d at 393. According to Justice Scalia, “Other than the bare
existence of delegated discretion, respondents have identified no ‘specific
employment practice’—much less one that ties all their 1.5 million claims
together.” Id. at ___, 131 S. Ct. at 2555–56, 180 L. Ed. 2d at 394.
According to Justice Scalia, “Merely showing that Wal-Mart’s policy of
discretion has produced an overall sex-based disparity does not suffice.”
Id. at ___, 131 S. Ct. at 2556, 180 L. Ed. 2d at 394.
Justice Ginsburg dissented in part and was joined by Justices
Breyer, Sotomayor, and Kagan. Id. at ___, 131 S. Ct. at 2561, 180 L. Ed.
2d at 400 (Ginsburg, J., concurring in part and dissenting in part).
Justice Ginsburg adopted the framework embraced in the Civil Rights
Act of 1991, but applied that framework in a fashion different than the
majority. According to Justice Ginsburg, the district court had identified
“systems for . . . promoting in-store employees that were sufficiently
similar across regions and stores to conclude that the manner in which
these systems affect the class raises issues that are common to all class
members.” Id. at ___, 131 S. Ct. at 2563, 180 L. Ed. 2d at 402 (internal
quotation marks omitted). Justice Ginsburg wrote that “[t]he practice of
29
delegating to supervisors large discretion to make personnel decisions,
uncontrolled by formal standards, has long been known to have the
potential to produce disparate effects.” Id. at ___, 131 S. Ct. at 2564, 180
L. Ed. 2d at 403. Citing Watson and Wards Cove, Justice Ginsburg
stressed that “[a]ware of ‘the problem of subconscious stereotypes and
prejudices,’ we held that the ‘employer’s undisciplined system of
subjective decisionmaking’ was an ‘employment practice’ that ‘may be
analyzed under the disparate impact approach.’ ” Id. at ___, 131 S. Ct. at
2565, 180 L. Ed. 2d at 404 (quoting Watson, 487 U.S. at 990–91, 108 S.
Ct. at 2777, 101 L. Ed. 2d at 842–43). Justice Ginsburg noted that the
plaintiffs had offered statistical evidence that showed, after controlling
for factors including “job performance, length of time with the company,
and the store where an employee worked,” there was a sufficient
statistical basis to give rise to an inference of discrimination. Id. at ___,
131 S. Ct. at 2564, 180 L. Ed. 2d at 403.
D. Treatment of Disparate Impact Analysis Under the Iowa
Civil Rights Act. We have had only a few occasions to consider cases
under the Iowa Civil Rights Act when disparate impact claims were
presented. See, e.g., Hy-Vee Food Stores, Inc. v. Iowa Civil Rights
Comm’n, 453 N.W.2d 512, 517–19 (1990); Wilson-Sinclair Co. v. Griggs,
211 N.W.2d 133, 140–41 (Iowa 1973). In those cases, the parties did not
argue that state law should be interpreted differently than federal law.
Nonetheless, it is generally true that “Iowa courts have traditionally
looked to federal law for guidance in interpreting” the Iowa Civil Rights
Act. Pecenka v. Fareway Stores, Inc., 672 N.W.2d 800, 803 (Iowa 2003).
We are, however, “not bound by federal law, despite consistent utilization
of the federal analytical framework.” Id. (citing Hulme v. Barrett, 449
N.W.2d 629, 631 (Iowa 1989)).
30
We have not, however, explicitly adopted under state law either the
teaching of Wards Cove or Wal-Mart. It is true that in Hy-Vee, we cited
Wards Cove in describing the differences between discriminatory
treatment and discriminatory impact cases. See Hy-Vee, 453 N.W.2d at518–19. We did not, however, adopt the holdings in Wards Cove lock,
stock, and barrel, and in no case has a party asked us to consider the
merits of the minority opinion in Wards Cove or some other approach
under the Iowa Civil Rights Act. In Hy-Vee, there was no question
regarding the presence of a particular discriminatory practice, namely,
the sexual segregation of stocker and checker positions. See id. at 520.
Similarly, with respect to Wal-Mart, we have had no occasion to
consider whether the majority or minority opinion in this 5–4 decision
has the most persuasive power. We thus have a number of interpretive
options under the Iowa Civil Rights Act. Do we follow the majority or the
minority in Wards Cove or Wal-Mart? Or, do we follow a third path?
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.
E. Academic Literature on Disparate Impact in the Setting of
Subjective Decision-Making. There is a body of literature grappling
31
with disparate impact theory in the context of subjective decision-
making. In a ground breaking article in 1993, David Benjamin
Oppenheimer suggested that negligence theory might be a basis for
disparate impact theory. See David Benjamin Oppenheimer, Negligent
Discrimination, 141 U. Pa. L. Rev. 899, 899 (1993) (examining
“psychological and sociological data on racism [to] demonstrate why
discrimination is more closely analogous to negligent conduct than it is
to intentional conduct”). This article has spawned significant offspring in
the literature. See generally, e.g., Elizabeth Tippett, Robbing a Barren
Vault: The Implications of Dukes v. Wal-Mart for Cases Challenging
Subjective Employment Practices, 29 Hofstra Lab. & Emp. L.J. 433(2012).
There is reason to believe that at least some members of the United
States Supreme Court might be interested in negligence theory in the
context of subjective decision-making. At oral argument in the Wal-Mart
matter, Justice Kennedy and Justice Roberts asked questions about
whether the plaintiff was advancing a “notice theory,” namely, that an
employer aware of the discriminatory impact of its subjective practices
may be liable under the Federal Civil Rights Act. See Deborah M. Weiss,
A Grudging Defense of Wal-Mart v. Dukes, 24 Yale J.L. & Feminism 119,
123 (2012). The plaintiffs’ lawyer apparently walked away from the
theory. See id. at 123, 167–68 (advocating a notice liability approach
when an employer is aware of problems and does not fashion an
appropriate remedy).
IV. Discussion of Specific Employment Practice and Incapable
of Separation for Analysis Issues.
A. Positions of the Parties.
32
1. The plaintiffs. The plaintiffs generally claim that the district
court erred in finding that the plaintiffs failed to show that the State’s job
selection process was not capable of separation for analysis. According
to the plaintiffs, the primary issue on appeal is “whether Defendants’
common hiring and promotion system permitted [the Plaintiffs] to
perform statistical analysis of [selection methods or protection practices]
or elements of decision-making.”
In support of their argument, the plaintiffs claim that the
defendants failed to properly record the use or lack of use of any specific
employment practices applied by any of the thirty-seven executive
branch departments, thus making a statistical analysis of any separate
element impossible. The plaintiffs challenge both the lack of aggregate
data maintained by DAS and the underlying documentation in
department hiring files.
The plaintiffs point out that DAS is responsible for the oversight of
merit and affirmative action in employment. Yet, according to the
plaintiffs, the information maintained by DAS did not contain data
sufficient to allow analysis of specific employment practices. The
plaintiffs note that the district court correctly found that “DAS retains no
data, computerized or otherwise, that allows one to see how a certain
person was screened and/or scored as compared to another applicant by
a department.” Thus, the information maintained by DAS was not
capable of separation for analysis because you could not compare the
treatment of one applicant to another in any objective way, a necessary
foundation in aggregate statistical analysis.
The plaintiffs then turn to the underlying, hard copy records
maintained by the departments. The plaintiffs note that under
applicable administrative regulations, agencies are required to
33
keep records as required by the director . . . [which] shall, at
a minimum, include tracking of the composition of applicant
groups, their movement through steps in the hiring
processes, and the impact of personnel actions on various
group members when records are not otherwise available in
centralized information systems.
Iowa Admin. Code r. 11—68.2(3).
Yet, the plaintiffs assert that the record shows that the underlying
department records are inadequate for three reasons. First, many of the
underlying employment files simply have missing documents. Second,
many of the underlying files reveal that the agencies did not create
documents in the first place showing why employees were chosen or not
chosen after having been screened by DAS and being minimally qualified
for the position. Finally, the plaintiffs assert that the agencies did not
apply common standards when scoring systems were used to evaluate
applicants.
In support of their claim that the departmental records were
inadequate to allow separation for analysis by a specific employment
practice, the plaintiffs cite two types of evidence in the record. First, the
plaintiffs point to admissions in the record by state employees or agents.
When consultant CPS conducted a review of state hiring practices for the
State in 2007, it noted that files it reviewed “were not complete and did
not indicate why some applicants were interviewed and others were not.”
CPS declared that its studies confirmed that the selection of persons for
interviews from DAS lists of minimally qualified applicants created “a
rebuttable inference of adverse impact” but noted that inconsistencies in
the State’s records within the same department prevented a more
detailed analysis. When DAS attempted to do an employment audit
pursuant to Executive Order No. 4, DAS officials indicated that they
found more lack of documentation than CPS. See Exec. Order No. 4
34
(2007), available at http://www.statelibraryofiowa.org/services/
collections/law-library/govexecorders/copy_of_execordculver. Further,
while Executive Order No. 4, among other things, required agencies to
assess the impact of screening methods on employee groups in the
selection process, see id., a DAS official, when asked if DAS was
incapable of complying with Executive Order No. 4, responded, “Right.
We needed to do more.” Ultimately, DAS abandoned its effort to conduct
an audit in compliance with Executive Order No. 4.
Second, the plaintiffs analyzed the 667 hiring files produced by the
State in discovery. The plaintiffs assert that an analysis of the files
reveals that fifty percent did not include résumé review screening
devices, over one in ten did not include interview questions, nearly one in
five did not include interview notes, and over twenty-five percent did not
include an interview scoring matrix.
The plaintiffs recognize that the aggregate data can be divided into
smaller parts. The plaintiffs concede that it is possible to sort the data
by Equal Employment Opportunity (EEO) job category, by year, and by
step in the hiring process. But the plaintiffs maintain that such division
of the data into smaller units does not anchor the statistical analysis in
specific employment practices, but simply lessens the size of the sample
for statistical analysis.
In other words, stacking documents by year does not help focus on
an employment practice nor does stacking documents by EEO job
category or step in the hiring process. The main effect of such slicing
and dicing is to lessen the size of the sample, thereby reducing the power
of aggregate statistical analysis without achieving any increase in focus.
In short, the plaintiffs claim they did the best they could with the
available data and that the aggregate analysis of disparate impact was
35
“as specific as the choices the employer permitted.” Based on the
aggregate data, they point out that the racial disparity in the hiring of
applicants deemed qualified for the job by DAS was statistically
significant and that the likelihood of the result occurring in a race-
neutral environment was as much as two billion to one, depending on
the data set used. Further, the plaintiffs assert that the record showed
that African Americans would have a forty percent better chance of being
hired or promoted if they were white.
The plaintiffs point to Port Authority Police Asian Jade Society v.
Port Authority, in support of their argument. 681 F. Supp. 2d 456(S.D.N.Y. 2010). In that case, the district court held that because an
employer failed to maintain records, “the role of each step cannot be
determined, [and] the steps cannot be examined separately to discover
whether a particular step causes a disparate impact.” Id. at 464. The
plaintiffs further connect the disparate impact shown by their statistics
with the lack of accountability in the State’s personnel system. They
point out that their experts testified that accountability is an important
aspect of integrated employment standards working to prevent biased or
invalid decision-making.
Finally, in addition to lack of record keeping, the plaintiffs note
that the subjective manner in which the State makes its personnel
decisions prevents separation for analysis of more specific personnel
practices. See Watson, 487 U.S. at 989–90, 108 S. Ct. at 2786, 101 L.
Ed. 2d at 841–42. The plaintiffs cite Watson for the proposition that
where an employment system combines objective and subjective
features, it should be considered subjective in nature because of the
ripple effect of subjective practices. See id. According to the plaintiffs,
36
under Watson, subjective features can be analyzed as one practice under
disparate impact analysis.
In support of its assertion that decision-making processes that
combine objective and subjective decision-making should be considered
as one employment practice under federal law, the plaintiffs cite Stender
v. Lucky Stores, Inc., 803 F. Supp. 259, 335–36 (N.D. Cal. 1992) and
McClain v. Lufkin Industries, Inc., 187 F.R.D. 267, 275 (E.D. Tex. 1999).
In Stender, the district court considered a class action brought by
African American and female employees working in the approximately
150 to 185 retail stores within Lucky’s Northern California Food Division.
803 F. Supp. at 266, 267. The Stender court declared that the plaintiff
need not identify a particular employment practice “[w]here the system of
promotion is pervaded by a lack of uniform criteria, criteria that are
subjective as well as variable, discretionary placements and promotions,
the failure to follow set procedures and the absence of written policies or
justifications for promotional decisions.” Id. at 335.
In support of its opinion, the Stender court cited Allen v. Seidman,
881 F.2d 375 (7th Cir. 1989). Stender, 803 F. Supp. at 335. In
Seidman, the court considered a Title VII challenge brought by black
bank examiners employed by the FDIC. 881 F.2d at 378. The plaintiffs
challenged a program evaluation test, which only thirty-nine percent of
the African American candidates passed compared to eighty-four percent
of the white candidates. Id. No regression analysis was performed. Id.
at 380. Judge Posner wrote that the statistics alone, without any further
proof, established a prima facie case. Id. He noted that where “there has
been a full trial, the issue of prima facie case drops out, and the question
becomes whether the judge is persuaded that the test or other challenged
37
practice is discriminatory because it has a disparate impact unjustified
by the defendant’s legitimate business needs.” Id. at 379.
In Lufkin, the district court considered the issue of class
certification in a case where African Americans sued an employer on a
disparate impact theory. Lufkin, 187 F.R.D. at 272. Candidly
characterizing the law as “complex and convoluted,” the district court
canvassed the law on disparate impact claims. Id. at 271, 272–75. With
respect to the identification of employment practices, the district
recognized that under the Civil Rights Act of 1991, a plaintiff was
required to demonstrate that “ ‘each particular challenged employment
practice causes a disparate impact’ ” except where an employer’s
decision-making process is “ ‘not capable of separation for analysis.’ ” Id.
at 272 (quoting 42 U.S.C. § 2000e-2(k)(1)(B)(i)). The Lufkin court noted
that under Lufkin’s employment process, “[a] broad array of . . .
employment practices rest on . . . subjective decision making” both in
central administration and within each division of the company. Id. at
273. As in this case, applicants are channeled through a centralized
human resources department where candidates who meet the objective
minimum criteria for jobs are forwarded to management employees for
approval unguided by any objective standards. See id. The district court
further noted that “[t]he pervasive subjective decision-making process
interacts with other facially neutral employment conditions to the
disadvantage of African-Americans” through a ripple effect. Id. at 274.
Concluding “Lufkin’s subjective employment practices [were] inextricably
intertwined,” the district court held that elements of the respondent’s
decision-making process were not capable of separation of analysis for
purposes of class certification. Id. at 275.
38
2. The State. The State begins its discussion by asserting that
whether the State’s decision-making process is capable for separation for
analysis is a question of fact. The State asserts that the plaintiffs’ claim
that the decision-making process was not capable of separation fails
because the plaintiffs never attempted to make such an analysis and
because they received voluminous amounts of data and hiring files.
The State claims that the evidence demonstrates that the plaintiffs
never tried to identify and analyze any particular employment practice or
decision-making process. For example, the State suggests that the
plaintiffs did not attempt to analyze hard documents in the departments
because they were not in a convenient digital format. In any event, the
State maintains that it provided substantial information in digital form in
the BrassRing system, and the Human Resource Information System
(HRIS) data system, which were maintained by DAS. In short, the State
claims that the plaintiffs were not forced to engage in system-wide
analysis because the decision-making process was not capable of
separation for analysis, but instead simply chose to engage in a system-
wide challenge.
The State emphasized that the plaintiffs had the affirmative burden
of showing that the process was capable of separation for analysis. The
State emphasizes the factual nature of the inquiry. The State further
claims that at trial the plaintiffs did not offer testimony that the decision-
making process was not capable of separation for analysis. The State
asserts that the plaintiffs never tried to analyze separate practices or
processes, but simply preferred to proceed on a system-wide basis. The
State highlights the staggering amount of information that was presented
to the plaintiffs in the BrassRing files and in the HRIS data system. The
39
State notes that Killingworth engaged in analysis of the data by EEO
category, by year, and by step in the hiring process.
B. Analysis of Specific Employment Practice and Incapable of
Separation for Analysis Under Title VII, as Amended by the Civil
Rights Act of 1991. Under the Civil Rights Act of 1991, a plaintiff in a
disparate impact case must identify a “particular employment practice”
being challenged or, in the alternative, demonstrate why an employer’s
decision-making process is “not capable of separation for analysis.” 42
U.S.C. § 2000e-2(k)(1)(B)(i). The district court held that the plaintiffs
failed to show that the State’s hiring practice was not capable of
separation for analysis.
On appeal, the plaintiffs do not claim they identified a particular
employment practice. Instead, the plaintiffs contend that the record
demonstrates that because of the poor record keeping of the State, and
because of the use of subjective criteria in the various departments, it
was impossible to engage in a more focused analysis of the hiring
practices of the State beyond what it presented in the case. Although the
plaintiffs’ evidence shows notice to the State of potential disparate impact
arising out of its employment processes, the plaintiffs, like the plaintiffs
in Wal-Mart, did not pursue a notice/negligence-type theory.
A few preliminary matters should be discussed. First, the mere
fact that the class involves a number of departments and different
positions over a period of years by one employer does not necessarily
demonstrate that the State’s decision-making process is capable of
separation for analysis. To the extent relevant, the class in this case is
much more compact than in Wal-Mart, where 1.5 million employees were
located in 3400 stores in all fifty states. See id. at ___, 131 S. Ct. at
2557, 180 L. Ed. 2d at 395. Many lower federal courts have
40
distinguished Wal-Mart on the ground that the classes being challenged
were more compact.7
Nor does the fact that the State flooded the plaintiffs with
computerized data and documents decide the case. There is no question
that the State databases provided to the plaintiffs contain thousands and
thousands of bits of data. Conclusory statements by witnesses and
lawyers regarding the nature of the information presented yield little
value. And, the mere fact that a trial lasted seventeen days does not
mean there must be substantial evidence supporting key findings of fact.
We must put the conclusory rhetoric aside and consider, first,
what does it mean for an employer’s decision-making to be incapable of
separation for analysis? Then, once we understand the meaning of the
statutory phrase, we must examine the record to determine if the
plaintiffs have met their burden in this case.
On the issue of what is meant by a decision-making process that is
incapable of separation for analysis, the parties provide us with little
guidance. No one disputes that the plaintiffs bear the burden of proof on
the issue. But what does it mean to be “incapable” of “separation” for
“analysis”?
We begin with a review of the three key statutory words: incapable,
separation, and analysis. None are statutorily defined. The word
incapable generally refers to something that cannot be done. See
7See,
e.g., Meyer v. U.S. Tennis Ass’n, No. 11 Civ. 6268, 2013 WL 7045237, at *7
(S.D.N.Y Dec. 6, 2013) (distinguishing nationwide class in Wal-Mart from narrow class
of hundreds of U.S. Open umpires); McReynolds v. Merrill Lynch, Pierce, Fenner & Smith,
Inc., 372 F.3d 482, 488 (7th Cir. 2012) (noting claim was limited to about 700 brokers,
a far cry from Wal-Mart’s class of 1.5 million); Ellis v. Costco Wholesale Corp., Nos. C–
04–3341 EMC, 2012 WL 4371817, at *15 (N.D. Cal. Sept. 25, 2012) (noting that the
proposed class was 700, which was much smaller than the 1.5 million employees
sought to be certified in Wal-Mart).
41
Merriam-Webster’s Collegiate Dictionary 585 (10th ed. 2002). Separation
has several different but related meanings, including “a point, line, or
means of division,” or “an intervening space.” Id. at 1064 (“separate”
used as a verb means to set or keep apart, to remove from a mixture or
to isolate). In the context of disparate impact, we believe the term
analysis must mean statistical analysis.
While an understanding of these three statutory terms is helpful,
we still need to probe the statutory context. What kind of separation is
sufficient? Separated or isolated from what? In context, it seems clear
that what must be separated out for analysis from the employers
decision-making process is particular employment practices, as the
separation of particular employment practices is what the statute
ordinarily requires. The plaintiffs must show they cannot spin out
separate employment practices from the larger whole that are capable of
statistical analysis.
Given these statutory terms and their common sense definitions, it
seems that a decision-making process may be incapable of separation for
analysis under at least three circumstances. First, the substantive
features of the decision-making process itself may be such that the
decision-making process is incapable of separation for analysis into
specific employment practices. That is the teaching of Stender. See 803
F. Supp. at 335 (finding employee’s “subjective and ambiguous decision-
making processes” incapable of separation for analysis). For instance, a
wholly subjective process, even if decentralized, would be incapable of
separation because of a lack of objective criteria. See Ronald D.
Rotunda, The Civil Rights Act of 1991: A Brief Introductory Analysis of the
Congressional Response to Judicial Interpretation, 68 Notre Dame L. Rev.
42923, 934 (1993) (noting that “hiring processes are often complicated,
with ill-defined or ill-followed guidelines”).
Second, even well-defined employment practices may be so
intertwined as not capable of meaningful analysis separately. The classic
example is Dothard v. Rawlinson, 433 U.S. 321, 97 S. Ct. 2720, 53 L. Ed.
2d 786 (1977). In Dothard, height and weight requirements for
correctional counselor positions in the Alabama state penitentiary
system, if considered separately, had relatively mild adverse impacts on
women, but when considered in combination, the adverse impact
significantly increased. 433 U.S. at 329–30, 97 S. Ct. at 2727, 53 L. Ed.
2d at 797. If the various employment practices cannot be isolated and
considered independently, they are not capable of separate analysis.
Third, the failure of the employer to keep adequate records can
make an employment decision incapable of separation for analysis. See
Port Auth. Police Asian Jade Soc., 681 F. Supp. 2d at 464. It is true that
the Civil Rights Act of 1991 did not contain the more specific language of
the proposed Civil Rights Act of 1990 (which, as noted above, provided
that a lack of records could excuse the particularity requirement), but
the adoption of the more general language of the Civil Rights Act of 1991
is certainly broad enough to encompass such an approach and plainly
does not preclude it. If, for example, the various departments of an
employer do not maintain records of interview criteria, including the
manner in which the interview is scored, and the scores awarded by the
employer based on the interview, it is difficult to see how a plaintiff could
engage in separate analysis of disparate impact. A contrary result would
be an incentive for employers to refuse to keep adequate records of their
employment processes. Thus, an employer who declines to keep
employment records from which particular employment practices are
43
capable of separation for analysis may face a lawsuit based on system-
as-a-whole-disparate impact.
Although the point is not always clear, the plaintiffs on appeal in
this case do not make an argument based solely upon one of the above
scenarios. Instead, the plaintiffs offered a hybrid argument, based upon
a combination of the above factors. The plaintiffs argue that a
combination of (1) ill-defined subjective practices, (2) intertwined
elements of decision-making, and (3) lack of adequate record keeping by
the employer prevented them from identifying specific employment
practices for purposes of disparate impact analysis.
Based on the above discussion, some of the analysis of the district
court on the separation issue appears off the mark. For example, the
district court declared that the analysis of employment practice or
process is focused on the “job specific” level. But this is not necessarily
true. A plaintiff is not required to focus on a job specific level if it can be
shown that any potential job specific employment practices are not
capable of separation for analysis. Indeed, such a contention is
antithetical to system-as-a-whole attacks that are permitted under the
statutory exception in 42 U.S.C. § 2000e-2(k)(1)(B)(i). Thus, the mere
fact that the data could be broken down by EEO-4 categories, for
instance, does not mean the plaintiff cannot proceed on a system-as-a-
whole theory.
Similarly, there is language in the district court ruling suggesting
that the existence of separate departments within an employer prevented
the plaintiffs from proceeding on a decision-making-as-a-whole theory.
The mere fact that there are departments within an employer, however,
does not in itself mean that a plaintiff cannot show that the decision-
making process is not capable of separation for analysis. If the plaintiff
44
can demonstrate, for instance, that the departments do not operate
under separate and identifiable employment practices, or that the
records are so deficient the alleged department practices cannot be
separately analyzed, then the plaintiff may be able to proceed on a
decision-making process as a whole theory.
In short, the fact that the plaintiffs were provided with lots of data
that can mechanically be sliced and diced in numerous ways proves
nothing; massive data can always be divided into countless different
piles. But the key question is not whether the massive data can be
divided up into piles, the question is whether the plaintiffs demonstrated
any resulting piles that might be formed do not reveal particular
employment practices that are capable of separation for statistical
analysis.
Consider the following hypothetical. Suppose a class of African
Americans challenged a state merit system of thirty-seven departments
which hired thousands of persons over a ten-year period over many EEO
categories of jobs. Suppose further that the State admitted that the
hiring decisions were made at the unfettered discretion of individual
managers in each department. Assuming no other facts, the plaintiffs
would be entitled to bring their class action under Title VII because there
would be no identifiable particular employment practices that were
capable of separate [statistical] analysis.
Take the above hypothetical and add the fact that the State
provided the plaintiff with a number of databases with hundreds of
thousands of data points. Suppose further that these documents
included numerous job résumés, many miscellaneous descriptions of the
job positions, dates the interviews were conducted, and the names of
45
managers who made the decisions. Would this barrage of data mean the
plaintiff was barred from proceeding on a system-as-a-whole basis?
The answer might be no. Even if the data contains thousands or
even millions of bits of information, the plaintiff may show the data does
not provide a basis for a plaintiff to identify particular employment
practices in an employer’s decision-making process that are subject to
separate [statistical] analysis. In short, the amount of information
produced is irrelevant. It is the quality of the information that is key.
Let us now change the hypothetical somewhat. Assume further
that the data dump in fact contained more substantive information on
the decision-making process. Suppose the data was a collection of
imperfect individual employment files, many of which contained specific
job related criteria, or matrices for scoring interviewees and the scoring
resulting from such interviews, and other significant material on the
hiring process. Now, under this modified hypothetical, could the plaintiff
identify specific employment practices that could be subject to separate
[statistical] analysis?
Nonetheless, the above discussion does not mean the plaintiffs
must prevail. Under Wards Cove and Wal-Mart, the plaintiffs still must
show there were not specific employment practices within the universe of
the state merit employment system with sufficient aggregate numbers
that they could be separated out for meaningful statistical analysis. See
Wal-Mart, 564 U.S. at ___, 131 S. Ct. at 2555–56, 180 L. Ed. 2d at 394;
Wards Cove, 490 U.S. at 656, 109 S. Ct. at 2124, 104 L. Ed. 2d at 751.
In order to prevail, the plaintiffs would have to show that the vast
universe of job selection could not be divided into smaller, better defined
subsets of specific employment practices with sufficient decision points
to be capable of statistical analysis.
46
The district court seems to have found that the plaintiffs may have
inadvertently done just that. The plaintiffs’ expert Mark Killingsworth
testified he could statistically analyze the disparate impact at what the
parties called step two of the analysis, namely, at the stage where DAS
cleared minimally qualified applicants and passed them onto the
individual departments for selection for an interview. But, we doubt step
two is an employment practice “capable of separation for analysis.” All
employment processes have chronological or procedural steps, but these
are not the equivalent of an employment practice with sufficient
definition that is subject to statistical analysis. Further, Killingsworth
testified step two could not really be separated from step three, the final
decision-making step in the process. The district court did not make a
specific finding regarding whether step two could be separated or isolated
from step three.
Nonetheless, as the district court pointed out, the plaintiffs have a
further problem. While the parties utilized central databases maintained
by DAS for what the district court accurately called “slicing and dicing” of
the statistical data, the databases may have been inadequate to engage
in analysis of specific employment policies for disparate impact by
department or other nonsystem-wide approaches. Even so, the
departments themselves maintained hard file copies of employment
records that may have included more information than was available on
the database. The question arises whether the plaintiffs adequately
proved this information could not have been utilized to separate out
employment practices by the various departments or agencies that would
be capable of separation for analysis. While the plaintiffs claim the
hiring data in the hard files was incomplete, the question remains
47
whether there was sufficient information in the hiring files to construct a
meaningful database to analyze specific employment practices.
The district court made findings related to the underlying
documents. It declared that “the hiring files themselves permit a focused
view of the different screening devices and practices in the referral,
interview, or hiring of applicants for any given job between the
departments.” Further, the district court stated that “one can focus on
any number of discrete employment decisions made as individual,
separate, discrete employment practices” and provided examples,
including a “second résumé screen” and a “spelling and grammar
screen.”
Read in a fashion to support the district court’s verdict, these
findings demonstrate the district court found that employment practices
could be extracted from the underlying documentary files and
statistically analyzed in a meaningful way. There is, however, no
requirement the defendants prove that employment practices are capable
of separation for meaningful statistical analysis. The precise legal issue
is whether the plaintiffs met their burden in showing that the particular
employment practices could not be separated and analyzed from the
documentary files maintained by the State. See 42 U.S.C. § 2000e-
2(k)(l)(B)(i). In short, at least under the theory of the case as litigated by
the parties, the plaintiffs have the burden of proving the negative.
We conclude the district court correctly resolved the issue
adversely to the plaintiffs and that such a finding is supported by
substantial evidence in the record. Killingsworth did not review the
underlying documentary files and offered no testimony indicating specific
employment practices could not be extracted from the underlying files for
statistical analysis notwithstanding the flaws in some of the files. The
48
State’s expert, Miller, suggested the underlying documents were capable
of separation for analysis. Dr. Greenwald characterized the hiring files
as “a gold mine that hasn’t been analyzed.” While it is true the
underlying files were often incomplete and flawed, that does not
necessarily mean employment practices could not be identified and
statistically analyzed in a meaningful way.
The bottom line, on the record before us, is that while the plaintiffs
demonstrated the recordkeeping was sometimes incomplete, the district
court on the record before it could conclude that the plaintiffs failed to
show the negative, namely, that employment practices could not be
extracted from the underlying documents and analyzed in a statistically
significant manner. On this issue, the district court got it right. As a
result, under applicable federal law, the State was entitled to summary
judgment on the record developed in the district court on the plaintiffs’
claim under Title VII of the Civil Rights Act of 1964.
V. Discussion of Specific Employment Practice and Incapable
of Separation Analysis Under the Iowa Civil Rights Act.
We now turn to the question of whether the defendant was entitled
to summary judgment under the Iowa Civil Rights Act. See Iowa Code
§ 216.6. Although it is often said that state civil rights acts were
patterned after the Federal Civil Rights Act, in fact more than twenty
state civil rights acts predated the Federal Act. See Arthur E. Bonfield,
State Civil Rights Statutes: Some Proposals, 49 Iowa L. Rev. 1067, 1107 &
n.140 (1964) (listing states). In an important article advocating the
passage of the Iowa Civil Rights Act, Bonfield relied extensively on state
models in proposing legislative action in Iowa. See id. at 1082
(discussing states’ antidiscriminatory laws). Thus, though the Iowa Civil
Rights Act was enacted in the year following the enactment of the Federal
49
Civil Rights Act, the Iowa Civil Rights Act draws on substantial state as
well as federal legislative precedent. See id. at 1095–1123 (reviewing
states’ antidiscrimination laws and proposing statutes for Iowa).
The substantive provisions of the Iowa Civil Rights Act and Title VII
of the Civil Rights Act of 1964 are often similar though not identical.
With respect to discrimination in employment, the Iowa Civil Rights Act
provides that “[i]t shall be an unfair or discriminatory practice for any
. . . [p]erson to refuse to hire” or “otherwise discriminate in employment
against any applicant for employment or any employee because of . . .
race.” Iowa Code § 216.6(1)(a). The parallel provision under the Federal
Civil Rights Act provides that “[i]t shall be an unlawful employment
practice for an employer . . . to fail or refuse to hire . . . or otherwise
discriminate against any individual because of . . . race.” 42 U.S.C.
§ 2000e-2(a)(1).
There are, however, differences between the state and federal acts.
For instance, the Iowa legislature has declared that the Iowa Civil Rights
Act “shall be construed broadly to effectuate its purposes.” Iowa Code
§ 216.18(1). There is no similar language in the Federal Civil Rights Act
and, indeed, the case can be made that the recent cases of the United
States Supreme Court, particularly Wards Cove and Wal-Mart, tend to
construe the federal counterpart narrowly. Other state courts have
interpreted similar legislative directions to mean that the remedies
afforded by the state civil rights statues require the “widest constitutional
application.” Fair Emp’t Practices Comm’n v. Rush-Presbyterian-St. Luke’s
Med. Ctr., 354 N.E.2d 596, 600 (Ill. App. Ct. 1976); see also Frieler v.
Carlson Mktg. Grp., Inc., 751 N.W.2d 558, 571–73 (Minn. 2008) (reviewing
various courts’ interpretations of the term “supervisor” and concluding
for purposes of sexual harassment claim under state law, the court
50
would adopt a broader view because state law required “liberal
construction of its terms”); Genaro v. Cent. Transp., Inc., 703 N.E.2d 782,
785 (Ohio 1999) (citing language that the state chapter “shall be
construed liberally for the accomplishment of its purposes” in departing
from federal precedent (internal quotation marks omitted)). An Iowa
court faced with competing legal interpretations of the Iowa Civil Rights
Act must keep in mind the legislative direction of broadly interpreting the
Act when choosing among plausible legal alternatives. Any state court
decision that adopts a narrow construction of Title VII by the United
States Supreme Court without confronting the requirement in Iowa law
that the Iowa Civil Rights Act be interpreted broadly misses an essential
difference in state and federal civil rights laws.
Even where language in a state civil rights statute is parallel to the
Federal Civil Rights Act, a state court is under no obligation to follow
federal precedent. As noted by the Vermont Supreme Court, federal civil
rights decisions may be persuasive, but they are not the only sources of
persuasive authority on the interpretation of state civil rights statutes.
Lavalley v. E.B. & A.C. Whiting Co., 692 A.2d 367, 369 (Vt. 1997).
Federal court decisions under the Federal Civil Rights Act are not
binding on state courts, which are free to consider other persuasive
authority and come to independent conclusions. See, e.g., Brown v. F.L.
Roberts & Co., 896 N.E.2d 1279, 1285 (Mass. 2008) (noting the court
“frequently” does not follow the reasoning of federal precedent in
interpreting the state civil rights statute (internal quotation marks
omitted)); Elezovic v. Ford Motor Co., 697 N.W.2d 851, 859 (Mich. 2005)
(finding supervisor liable for sexual harassment under Michigan civil
rights statute, noting that “we are not compelled to follow . . . federal
interpretations” (internal quotation marks omitted)); Frieler, 751 N.W.2d
51at 571–73 (considering varying interpretations of the term supervisor for
claims of sexual harassment); Grimwood v. Univ. of Puget Sound, Inc.,
753 P.2d 517, 520 (Wash. 1988) (noting that “[w]hile these federal cases
are a source of guidance, we bear in mind that they are not binding and
that we are free to adopt those theories and rationale which best further
the purposes and mandates of our state statute”); Goodyear Tire &
Rubber Co. v. Dep’t of Indus., 273 N.W.2d 786, 791 (Wis. Ct. App. 1978)
(noting Wisconsin courts “must construe Wisconsin statutes as it
believed the Wisconsin legislature intended, regardless of how Congress
may have intended comparable statutes”); cf. State v. Baldon, 829
N.W.2d 785, 811–16 (Iowa 2013) (Appel, J., concurring specially) (noting,
inter alia, that state constitutional provisions need not be interpreted
uniformly with federal case law under parallel federal constitutional
provisions). See generally Alex B. Long, “If the Train Should Jump the
Track . . .”: Divergent Interpretations of State and Federal Employment
Discrimination Statutes, 40 Ga. L. Rev. 469, 482–83 (2006) (finding
parallel between independent state constitutional interpretation and
independent state court interpretation of state employment
discrimination statutes).
Recognition of the independent character of state civil rights
statutes is particularly important when Congress passes legislation
designed to overcome decisions of the United States Supreme Court
narrowly interpreting civil rights statutes. For instance, when the United
States Supreme Court held in General Electric Co. v. Gilbert that
discrimination based on pregnancy was not sex discrimination, Congress
overrode the decision. 429 U.S. 125, 138–39, 97 S. Ct. 401, 409–10, 50
L. Ed. 2d 343, 356 (1976), superseded by statute, Pregnancy
Discrimination Act of 1978, Pub. L. No. 95-555, 92 Stat. 2076, as
52
recognized in Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 103 S. Ct, 2890,
77 L. Ed. 2d 490 (1983). After the United States Supreme Court decided
Wards Cove, Congress enacted legislation in response to the decision.
See 42 U.S.C. § 2000e-2(k). Congress recently overrode the restrictive
United States Supreme Court cases of Sutton v. United Air Lines, Inc., 527
U.S. 471, 119 S. Ct. 2139, 144 L. Ed. 2d 450 (1999), and Toyota Motor
Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184, 122 S. Ct. 681,
151 L. Ed. 2d 615 (2002), through the ADA Amendments Act of 2008,
Pub. L. No. 110-325, § 2(b)(2)–(5), 122 Stat 3553 (2008). Similarly,
Congress acted in response to Ledbetter v. Goodyear Tire & Rubber Co. by
enacting curative legislation. 550 U.S. 618, 127 S. Ct. 2162, 167 L. Ed.
2d 982 (2007), superseded by statute, Lilly Ledbetter Fair Pay Act of
2009, Pub. L. No. 111-2, 123 Stat. 5. The frequent narrow construction
of civil rights laws by the United States Supreme Court, followed by
congressional intervention, has been cited as a ground for decreased
deference to United States Supreme Court decisions by state courts. See
Sperino, Revitalizing, 20 Geo. Mason L. Rev. at 564–68 (“To the extent
that the development of the federal [employment discrimination]
frameworks depends on references to statutory languages and its
historical development over time, reading the state statutes in
accordance with these federal frameworks is highly suspect.”); Sandra F.
Sperino, Diminishing Deference: Learning Lessons from Recent
Congressional Rejection of the Supreme Court’s Interpretation of
Discrimination Statutes, 33 Rutgers L. Rec. 40, 42–43 (2009) (arguing
that “repeated Congressional rejection of [the Supreme Court’s narrow
interpretations of civil rights statutes] suggest[s] that state regimes
should not be so beholden to what may likely be faulty interpretation on
the part of the Supreme Court”).
53
The failure of the Iowa legislature to enact similar curative
legislation, however, is of no particular moment when there has been no
similar narrow judicial construction of the Iowa Civil Rights Act by this
court. Federal cases are not binding on questions of state law and thus
there is no need to override them through state legislative action. As
noted by the Vermont Supreme Court, a state legislature is not required
to “react to every federal decision interpreting Title VII or risk that its
inaction will be interpreted as an endorsement of the federal decision.”
Lavalley, 692 A.2d at 370.
The above principles are consistent with our caselaw. For
example, in Hubbard v. State, we noted that
[a]lthough decisions and interpretations of federal courts
may be illustrative and instructive to state courts in
construing statutes patterned after those enacted by
Congress and entitled to great weight in determining
construction to be given the same phrase in subsequently
enacted state statutes, they are neither conclusive nor
compulsory, especially when it appears earlier statutes
substantially similar have also been enacted in other states.
163 N.W.2d 904, 909 (Iowa 1969) (emphasis added). Here, the Iowa Civil
Rights Act was enacted only one year after the Federal Act and thus
there was little preexisting caselaw that would be entitled to “great
weight” under Hubbard. See id. Further, at the time the Iowa Civil
Rights Act was passed, there were also state statutory counterparts,
which may provide helpful precedents. See id. (“Where the language has
been borrowed from the statutes of a sister state we would go for light to
the construing decisions . . . of that state.”).
Consistent with Hubbard, we look to federal caselaw, and the
caselaw of other states under their state civil rights statutes, for
persuasive guidance. For example, in Pecenka, we noted that we may
look to federal interpretations in construing the Iowa Civil Rights Act but
54
are not bound by them. 672 N.W.2d at 803. And, in holding that a
supervisor may be personally liable for harassment under section
216.6(1) of the Iowa Civil Rights Act, we favorably cited a New York case
construing state law. See Vivian, 601 N.W.2d at 877–78.
The bottom line is that the Iowa Civil Rights Act is a source of law
independent of the Federal Civil Rights Act. In construing the Act, we
may look to federal and state court precedent, none of which are binding,
but which may persuade us in the interpretation of the Iowa statute. In
making choices under the Iowa Civil Rights Act, we must be mindful of
the legislative direction that the Act be broadly interpreted to effectuate
its purposes. See Iowa Code § 216.18(1).
The plaintiffs in their brief, however, do not explicitly invite us to
interpret the Iowa Civil Rights Act in a fashion different than Title VII of
the Federal Civil Rights Act. The plaintiffs declare that “generally
speaking,” the same burden-shifting approach is applied under the Iowa
Civil Rights Act as is applied under Title VII of the Federal Civil Rights
Act. But the plaintiffs go even further. They seem to take the view that
the criteria established in the Civil Rights Act of 1991 also apply under
the Iowa Civil Rights Act even though there was no comparable statutory
amendment. Plaintiffs simply state that under “the law,” a plaintiff must
identify a specific employment practice or show that the decision-making
process is not capable of separate analysis. Thus, the plaintiffs do not
appear to make the substantive argument that Iowa law should embark
on a different path than reflected in Wards Cove and the subsequent
amendments to Title VII adopted by Congress or from Wal-Mart.
We thus must confront a question of preservation. A narrow
private law approach would suggest that we narrowly decide only the
questions advanced by the parties. See Melvin Aron Eisenberg,
55
Participation, Responsiveness, and the Consultative Process: An Essay for
Lon Fuller, 92 Harv. L. Rev. 410, 413 (1978) (advocating strong
responsiveness to the parties arguments “insofar as the parties
contemplate that the court will settle their dispute on the basis of the
issues as the parties see them”). On the other hand, in dealing with
public law questions, the court has a responsibility for the development
of law generally and cannot allow the advocacy of private parties to
dictate legal development. See generally Abram Chayes, The Role of the
Judge in Public Law Litigation, 89 Harv. L. Rev. 1281 (1976). The
preservation question was explored at some depth in the context of
common law development in Feld v. Borkowski, 790 N.W.2d 72, 82–86
(Iowa 2010) (Appel, J., concurring in part and dissenting in part).
In the constitutional context, we have stated when a party raises
both federal and state constitutional claims, but does not establish a
different substantive standard between the state and federal
constitutions, we assume the federal standard applies, but reserve the
right to apply that standard in a fashion different from federal courts.
See State v. Edouard, ___ N.W.2d ___ (Iowa 2014) (Appel, J., concurring
specially). Using this approach, we have reserved for another day some
very important constitutional issues under the Iowa Constitution that,
instead of being decided earlier, remain very much alive today. See, e.g.,
King v. State, 818 N.W.2d 1, 47 n.52 (Iowa 2012) (Appel, J., dissenting)
(reserving question of whether article IX, division 1, section 12 of the
Iowa Constitution provides enforceable rights to a public education);
State v. Lowe, 812 N.W.2d 554, 593 n.23 (Iowa 2012) (Appel, J.,
concurring in part and dissenting in part) (reserving the question of
whether Iowa should abandon the multifactor Schneckloth v. Bustamonte
test in the search and seizure context in favor of a requiring knowing and
56
voluntary consent); State v. Iowa Dist. Ct., 801 N.W.2d 513, 518 n.2
(Iowa 2011) (reserving question of whether participation in sex offender
treatment program requiring offender to admit past crimes violated due
process under the state constitution); State v. Effler, 769 N.W.2d 880,
890, 895–97 (Iowa 2009) (Appel, J., concurring specially) (reserving the
important question of whether we should reject the majority view
expressed in Davis v. United States, 512 U.S. 452, 114 S. Ct. 2350, 129
L. Ed. 2d 362 (1994), in favor of the dissenting position). We could adopt
a similar approach on an issue of statutory construction of a parallel
statute.
In this case, the plaintiffs structured the litigation and advanced
arguments solely based upon federal law standards. Had the plaintiffs
advanced an argument under state law departing from the federal
precedent, for example, that a particular employment practice is not a
requirement under the Iowa Civil Rights Act8—a different factual record
might have been developed at trial. Specifically, the State did not
attempt to present a defense based upon business necessity, and the
State’s response to the plaintiffs’ damage claim was quite limited. If, for
example, the State knew the plaintiff was relying upon a different theory
of law, it might have affected the factual development at trial. Under
these circumstances, we decline to address arguments that were not
advanced by the plaintiffs at trial.
8“Also troubling is the Court’s apparent redefinition of the employees’ burden of
proof in a disparate-impact case.” Wards Cove, 490 U.S. at 672, 109 S. Ct. at 2133,
104 L. Ed. 2d at 761 (Stevens, J., dissenting). “No prima facie case will be made, it
declares, unless the employees isolat[e] and identif[y] the specific employment practices
that are allegedly responsible for any observed statistical disparities.” Id. (internal
quotation marks omitted). “This additional proof requirement is unwarranted.” Id.
57
Nonetheless, even when the parties have not argued for different
substantive principles, we still may apply the principles advocated by the
parties in a fashion different than the federal courts. See Edouard, ___
N.W.2d at ___ (Appel, J., concurring specially). Yet, we find no basis to
do so in this case. Under the framework presented to the district court,
which for the purposes of this case we adopt, the plaintiffs failed to show
that the underlying documents did not provide sufficient information to
allow employment practices to be separated for meaningful statistical
analysis. As a result, given the posture of this case, we affirm the
decision of the district court under the Iowa Civil Rights Act.
VI. Conclusion.
For the above reason, the district court judgment is affirmed.
AFFIRMED.
All justices concur except Waterman, Mansfield, and Zager, JJ.,
who concur specially.
58
#12–0913, Pippen v. State
WATERMAN, Justice (concurring specially).
I respectfully concur in the result only. I am unable to join the
majority opinion’s affirmance of the district court’s thorough, well-
reasoned decision on the merits in favor of defendants. See Pippen v.
State, No. 05771 LACL107038, 2012 WL 1388902 (Iowa Dist. Ct.
April 17, 2012), available at http://www.iowaappeals.com/wp-
content/uploads/2012/05/Pippen-Ruling.pdf. The majority’s discussion
of the law includes dicta unnecessary to its holding. For example, the
majority gratuitously undermines our court’s long-standing practice of
relying on federal decisions to interpret equivalent provisions of the Iowa
Civil Rights Act. Yet, the majority’s analysis of the dispositive issue is
cursory. Given the importance of this case, I offer a more complete
analysis of the grounds to affirm the judgment and respond to the dicta
to help guide cases to follow.
Plaintiffs are a certified class of over 5000 members defined as
“[a]ll African American applicants and employees who sought
appointment to or held a merit-system position with an Executive
Branch agency (not including Board of Regents) at any point from July 1,
2003, through April 17, 2012.” They brought disparate impact racial
discrimination claims under Title VII of the Civil Rights Act of 1964 and
the Iowa Civil Rights Act of 1965 (ICRA). These civil rights laws were
enacted to eliminate discriminatory practices, provide remedies for
discrimination, and allow equal opportunities in employment.
Defendants are the State of Iowa and its thirty-seven executive branch
departments. There are over 700 types of employment positions within
the executive branch. During the relevant period, nearly 500,000
applications were submitted by 100,000 applicants for 20,000 openings.
59
Approximately 2000 supervisors within the executive branch have
authority in the hiring process. Plaintiffs sought to prove at trial that the
State’s overall hiring system during the relevant time period
discriminated on the basis of race.
Disparate impact law generally requires plaintiffs to prove a
particular employment practice caused a disparate impact. The majority
fails to discuss the purpose of this proof requirement, which is to enable
the district court to fashion a remedy correcting the discriminatory
practice without affecting other practices that are not discriminatory.
Congress enacted a narrow exception to this general requirement.
Specifically, plaintiffs do not have to prove a particular employment
practice had a discriminatory impact if they prove the State’s hiring
process was incapable of “separation for analysis.” See 42 U.S.C.
§ 2000e-2(k)(1)(B)(i) (2006). In that event, the law relieves them of the
burden of attributing the discrimination to a particular employment
practice. Here, the plaintiffs sought to proceed under that exception.
Following a month-long bench trial, the district court found the
State’s employment decision-making process was capable of separation
for analysis. For the reasons explained below, I conclude the “capable of
separation” finding is supported by substantial evidence and is
dispositive. I therefore agree the district court judgment must be
affirmed.
I. Additional Background Facts and Proceedings.
As required under our standard of review in our appellate role, we
review the trial evidence in the light most favorable to the judgment.
Falczynski v. Amoco Oil Co., 533 N.W.2d 226, 230 (Iowa 1995). I will
elaborate on the expert testimony discussed by the majority opinion.
60
As the majority notes, plaintiffs presented testimony from three
expert witnesses. Anthony Greenwald and Cheryl Kaiser testified
regarding the social science of implicit-bias stereotyping and how implicit
biases affect decision-making. Kaiser explained the difference between
explicit and implicit bias: explicit bias is “conscious, deliberate,
controlled animosity,” whereas implicit bias is due to unconscious
negative associations—stereotypes—that people have developed over
time.9 Implicit-bias theory helps explain how statistical disparities can
result without intentional discrimination: individuals act on implicit
biases without recognizing they are doing so. Greenwald testified
unconscious bias leads to discrimination particularly in subjective
decision-making and that most test groups demonstrate a seventy
percent unconscious preference for whites over blacks.10 And, as is
customary in a disparate impact case, the plaintiffs presented testimony
9Research into the process of socialization and development of social
norms [has] led to an understanding that the development of
stereotypes—and consequent biases and prejudices—is not a function of
an aberrational mind, but instead an outcome of normal cognitive
processes associated with simplifying and storing information of
overwhelming quantity and complexity that people encounter daily.
Melissa Hart, Subjective Decisionmaking and Unconscious Discrimination, 56 Ala. L. Rev.
741, 746 (2005) (internal quotation marks omitted). Implicit-bias research and its
application to legal theories has been thoroughly reviewed in legal scholarship. See
Jerry Kang, Trojan Horses of Race, 118 Harv. L. Rev. 1489, 1515 & n.122 (2005)
(providing summary of employment-related implicit-bias studies, including experiment
where résumés with “white names” received fifty percent more callbacks than résumés
with “black names”); see also Judge Mark W. Bennett, Unraveling the Gordian Knot of
Implicit Bias in Jury Selection: The Problems of Judge-Dominated Voir Dire, the Failed
Promise of Batson, and Proposed Solutions, 4 Harv. L. & Pol’y Rev. 149, 151–158 (2010)
(discussing implicit-bias research as it relates to jury selection); L. Song Richardson,
Arrest Efficiency and the Fourth Amendment, 95 Minn. L. Rev. 2035 (2011) (discussing
implications of implicit bias for police–citizen interactions and Fourth Amendment
jurisprudence, and proposing “debiasing strategies” for police departments).
10Notably,Greenwald is an inventor of the Implicit Association Test, a widely
used method of measuring implicit bias. See Project Implicit, About Us,
https://www.projectimplicit.net/about.html (last visited July 10, 2014).
61
from a statistical expert, labor economist Mark Killingsworth.11
Killingsworth chose to limit his analysis to applications referred by
DAS to the departments (thus effectively excluding applicants who did
not satisfy minimum qualifications from his review).12 Killingsworth’s
system-wide review for the years 2004 through 2008 showed that
African-American applicants were statistically less likely than white
applicants to be interviewed and hired in every year. For example, in
2005, nine percent of African-American applicants were interviewed, as
compared to twenty percent of white applicants. That same year, 1.8% of
African-American applicants were hired, as compared to 4.2% of white
applicants. Overall, his analysis showed that a minimally qualified white
person had a forty percent greater chance of being hired than a
minimally qualified African American. Splitting his analysis by
department, Killingsworth testified there was a statistically significant
disparity between the percentage of African-American applicants hired
and the percentage of white applicants hired in many of the departments,
though not all. Killingsworth further testified that, once hired, white and
African-American employees were treated differently in performance
11Notably, the CPS study mentioned by the majority did not perform regression
analyses that excluded other possible variables that could account for the differences it
reported. After pointing out the disparity between referrals and interviews, CPS
acknowledged, “There could be . . . very legitimate reasons why the percentage of
African Americans is reduced so dramatically between referral and interview” and
acknowledged that “the team was unable to determine a definitive reason(s) for these
outcomes.”
12Both Killingsworth and the State’s expert, Robert Miller, used applications—as
opposed to applicants—as their unit of analysis. As the CPS study noted, it is difficult
to identify the exact makeup of the applicant pool or the actual number of applicants
because the State’s tracking system did not track individual people, but rather
applications. Both the State’s and plaintiffs’ experts acknowledged African-American
applicants applied on average for 1.6 more jobs than white applicants. In short, both
parties agreed that African-American applicants, on average, followed a strategy of
casting a wider State job search net than white applicants.
62
evaluations. Killingsworth did not connect his findings to any particular
State practice.13
Robert Miller, another labor economist and the State’s statistical
expert, also performed regression analyses. With regard to wages and
promotion, he found no statistically significant differences between races
after taking into account experience and the pay grade of the job for
which the individual applied. He criticized Killingsworth’s regressions as
inadequate because they failed to adjust for these other factors.
With regard to hiring, Miller subdivided his work into the three
steps that the State followed to get to its actual hire. Thus, unlike
Killingsworth, who considered only steps two and three and combined
them, Miller separately considered steps one, two, and three. At step
three, i.e., what occurs after the applicant is granted an in-person
interview, Miller found no statistically significant difference between
whites and blacks in their success in being hired.
At step one, Miller found no statistically significant difference
between white and black applicants in getting a referral. On a per
application basis, though, African Americans were less successful than
whites in getting a referral. However, the data also showed that African-
American applicants, on average, filed more applications than whites
(approximately 5.9 versus 4.3 per applicant over a multiyear period—a
thirty-eight percent difference).
At step two—referral to interview—Miller’s findings were more
nuanced. On the whole, he found that African Americans were
13Killingsworth acknowledged that he looked only at “[t]he total result,” not any
particular employment practice other than “hiring” as a whole. He did not offer any
opinions that the disparities he observed were the result of subjective as opposed to
objective hiring practices.
63
statistically less likely to receive a department job interview after their
application was referred by DAS. Probing more deeply, he found this was
only true for about one-third of State departments. It was not true for
the remaining two-thirds of departments. As Miller explained,
The overall conclusion with respect to step two is that a
common factor could not or does not appear to be operating
across all the departments in the same way, because our
results show that there are clear departmental differences.
For the specific jobs that the thirteen named plaintiffs had applied for,
Miller found that African Americans were not statistically less likely to
get interviews than whites.
The plaintiffs reviewed paper hiring files produced by the State for
667 separate positions that were filled. Based on the examples in the
record, these files contained items such as applicant résumés, score
sheets for résumé reviews, score sheets for interviews, and letters asking
for authority (and justifying the decision) to hire the successful applicant.
For instance, for the position of workforce advisor in the unemployment
insurance service center, Iowa Workforce Development used a résumé
review worksheet that awarded a maximum of fifty-nine points. There
were a maximum of twenty points potentially available for education, ten
points potentially available for unemployment insurance claims
experience, fourteen points potentially available for possessing various
computer skills, five points available for being a veteran (or ten for being
a disabled veteran), and five points available for “ability to follow resume
and cover letter submission directions.” These files were not provided to
or reviewed by Killingsworth. As Killingsworth put it, “I don’t have any
access or haven’t had any hiring files.”
64
Miller testified that the data were “absolutely” capable of
separation for analysis, and in fact, he separated them to the extent
noted.
II. Analysis.
On appeal, plaintiffs do not argue that the State’s failure to follow
its own equal-employment-opportunity policies constituted a discrete
employment practice. Instead, plaintiffs challenge the district court’s
determination that the State’s overall hiring process was capable of
separation for analysis. Plaintiffs argue the hiring process could not be
analyzed in terms of separate practices. Plaintiffs also assert on appeal
that the district court erred in determining they failed to prove causation.
Because the district court correctly decided the dispositive separation
issue, we need not reach the causation issue. I will provide an overview
of the governing law to place the separation issue into context.
A. Disparate Impact Law. Title VII of the 1964 Civil Rights Act’s
“central statutory purposes [are] eradicating discrimination throughout
the economy and making persons whole for injuries suffered through
past discrimination.” Albemarle Paper Co. v. Moody, 422 U.S. 405, 421,
95 S. Ct. 2362, 2373, 45 L. Ed. 2d 280, 299 (1975). To that end, Title VII
seeks “to eliminate those discriminatory practices and devices which
have fostered racially stratified job environments to the disadvantage of
minority citizens.” McDonnell Douglas Corp. v. Green, 411 U.S. 792, 800,
93 S. Ct. 1817, 1823, 36 L. Ed. 2d 668, 676 (1973). “The ICRA was
modeled after Title VII” and enacted to serve the same purposes: it “was
passed in 1965 in an effort to establish parity in the workplace and
market opportunity for all.” Vivian v. Madison, 601 N.W.2d 872, 873
(Iowa 1999).
65
Title VII and the ICRA each provide two principal ways to prove
employment discrimination: disparate impact and disparate treatment.
Hy-Vee Food Stores, Inc. v. Iowa Civil Rights Comm’n, 453 N.W.2d 512,
516 (Iowa 1990). The fundamental difference between the two theories is
that “the disparate treatment theory focuses on the employer’s
motivation; the disparate impact theory focuses on the consequences of
the employer’s conduct.” Id. Disparate treatment requires a plaintiff to
prove intentional discrimination. Id.Disparate impact, the theory plaintiffs presented at trial, presents
an avenue for addressing inequalities in the absence of intentional
discrimination. In a disparate impact case, what matters is not the
subjective motivation of the employer, but the effects of an employment
practice. Griggs v. Duke Power Co., 401 U.S. 424, 432, 91 S. Ct. 849,
854, 28 L. Ed. 2d 158, 165 (1971). Disparate impact prohibits employer
practices “that are facially neutral in their treatment of different groups
but that in fact fall more harshly on one group than another.” Int’l Bhd.
of Teamsters v. United States, 431 U.S. 324, 335 n.15, 97 S. Ct. 1843,
1854 n.15, 52 L. Ed. 2d 396, 415 n.15 (1977). Meant to remove barriers
to employment or promotion that are unrelated to job performance, the
focus of disparate impact theory is on fairness in operation—not fairness
in form. Griggs, 401 U.S. at 431, 91 S. Ct. at 853, 28 L. Ed. 2d at 164(commenting that “equality of opportunity merely in the sense of the
fabled offer of milk to the stork and the fox” is insufficient under Title
VII).
A three-step burden-shifting framework applies to disparate impact
claims. In the first stage, to establish a prima facie case, a plaintiff must
show that the employer “ ‘uses a particular employment practice that
causes a disparate impact’ on one of the prohibited bases.” Lewis v. City
66
of Chicago, 560 U.S. 205, 212, 130 S. Ct. 2191, 2197, 176 L. Ed. 2d 967,
974 (2010) (emphasis omitted) (quoting 42 U.S.C. § 2000e-2(k)(1)(A)(i)).
“Identifying a specific practice is not a trivial burden . . . .” Meacham v.
Knolls Atomic Power Lab., 554 U.S. 84, 101, 128 S. Ct. 2395, 2406, 171
L. Ed. 2d 283, 296 (2008). Second, if the plaintiff makes this prima facie
showing, the burden shifts to the employer to prove that the challenged
employment practice reflects a business necessity. See 42 U.S.C.
§ 2000e-2(k)(1)(A)(i). Third, the plaintiff may rebut the employer’s
business-necessity evidence by demonstrating there are “other
reasonable alternatives that would have less adverse impact,” Hy-Vee,
453 N.W.2d at 518, and the defendant “refuses to adopt such alternative
employment practice,” 42 U.S.C. § 2000e-2(k)(1)(A)(ii). Only the first
stage is at issue in this appeal because the district court held that
plaintiffs failed to prove their prima facie case.
The identification of a particular employment practice in the first
stage helps the court ascertain and remedy the cause of racial
disparities. Proof focused on a particular employment practice enables
the relevant comparison between “qualified persons in the labor market
and the persons holding at-issue jobs.” Wards Cove Packing Co. v.
Atonio, 490 U.S. 642, 650, 109 S. Ct. 2115, 2121, 104 L. Ed. 2d 733,
747 (1989), superseded by statute on other grounds, 42 U.S.C. § 2000e-
2(k), as recognized in Wal-Mart Stores, Inc. v. Dukes, 564 U.S. ___, 131
S. Ct. 2541, 180 L. Ed. 2d 374 (2011).
The United States Supreme Court cautioned that using overbroad
statistics to prove a disparate impact claim “would result in employers
being potentially liable for ‘the myriad of innocent causes that may lead
to statistical imbalances in the composition of their work forces.’ ” Id. at
657, 109 S. Ct. at 2125, 104 L. Ed. 2d at 751–52 (quoting Watson v.
67
Fort Worth Bank & Trust, 487 U.S. 977, 992, 108 S. Ct. 2777, 2787, 101
L. Ed. 2d 827, 843 (1988)). “Title VII guarantees [individuals] the
opportunity to compete equally with white workers on the basis of job-
related criteria,” but does not guarantee equal outcomes. Connecticut v.
Teal, 457 U.S. 440, 451, 102 S. Ct. 2525, 2532–33, 73 L. Ed. 2d 130,
139 (1982). As the Wards Cove Court explained, if plaintiffs are allowed
to use aggregated statistics alone to prove disparate impact, it is difficult
for the Court to determine if the racial composition of hires is at odds
with the relevant qualified labor market. 490 U.S. at 650–52, 109 S. Ct.
at 2121–22, 104 L. Ed. 2d at 747–48.
Wards Cove highlighted that racial disparities revealed in
aggregated statistics at times could be justified by a closer examination
of the qualified labor pool. Similarly, disparities shown by statistics
aggregated at the departmental level may be explained by the specific
employment practices of a given department. See Wal-Mart, 564 U.S. at
___, 131 S. Ct. at 2555, 180 L. Ed. 2d at 394 (“[I]nformation about
disparities at the regional and national level does not establish the
existence of disparities at individual stores, let alone raise the inference
that a company-wide policy of discrimination is implemented by
discretionary decisions at the store and district level.” (Internal
quotation marks omitted.)).
The particularity requirement allows the court to fashion an
appropriate remedy: if a particular employer practice is identified as
causing discriminatory impact, the court can order the employer to
correct it. Title VII “arm[s] the courts with full equitable powers” in order
to address violations. Albemarle, 422 U.S. at 418, 95 S. Ct. at 2372, 45
L. Ed. 2d at 297. A court must be able to determine the cause of
discrimination to effectively exercise these equitable powers. As the
68
United States Supreme Court has long recognized, the usefulness of
statistics “depends on all of the surrounding facts and circumstances.”
Int’l Bhd. of Teamsters, 431 U.S. at 340, 97 S. Ct. at 1856–57, 52
L. Ed. 2d at 418. It is vital to determine the particular employment
practice causing the disparate impact in order to fix the problem.
For example, the record shows that African Americans actually
comprise a higher percentage of the State executive branch workforce
than they do in the Iowa workforce as a whole. Yet, it would be wrong to
conclude from that overall number that the State is not discriminating on
the basis of race. One has to focus on actual employment practices.
While Congress generally required that a plaintiff identify
particular employment practices that cause disparate impact, Congress
also provided that the decision-making process could be challenged as a
whole under certain circumstances. Specifically, Congress provided:
With respect to demonstrating that a particular employment
practice causes a disparate impact . . . the complaining party
shall demonstrate that each particular challenged
employment practice causes a disparate impact, except that
if the complaining party can demonstrate to the court that
the elements of a respondent’s decisionmaking process are
not capable of separation for analysis, the decisionmaking
process may be analyzed as one employment practice.
42 U.S.C. § 2000e-2(k)(1)(B)(i). This law codifies an exception to the
requirement that a plaintiff identify a particular employment practice,
thereby ensuring that employers cannot avoid liability for disparate
impact simply by making it difficult for a plaintiff to separately analyze
the decision-making elements. See Griffin v. Carlin, 755 F.2d 1516, 1525
(11th Cir. 1985). This statutory exception balances the concern that
employers could evade liability against the need for particularity by
requiring the plaintiff to first demonstrate the employer’s process is
incapable of separation. As the majority acknowledges, the burden was
69
on plaintiffs to prove the State’s decision-making process is incapable of
separation for analysis before proceeding to attack the process as a
whole. See Grant v. Metro. Gov’t of Nashville, 446 F. App’x 737, 740 (6th
Cir. 2011).
The ICRA does not have a counterpart to the 1991 congressional
amendment.14 Plaintiffs do not argue here—and did not argue below—
that their burden to establish a prima facie case under the ICRA was
lower than their burden under Title VII. I will therefore focus on federal
law and on the question of whether the State’s employment practices
were “not capable of separation for purposes of analysis.” But, first, I
must respond to dicta in the majority opinion that misleads by omission
and thereby unfairly disparages, sub silentio, our long-standing practice,
followed in numerous decisions of this court, of relying on federal
decisions to interpret equivalent provisions in the ICRA. The majority, in
a discussion unrelated to its holding, distances itself from federal
decisions.
The majority, relying on Hubbard v. State, 163 N.W.2d 904, 909
(Iowa 1969), suggests federal interpretations of Title VII are only useful if
those interpretations preceded the enactment of the Iowa statute. I
disagree. Hubbard was decided a half century ago and interpreted the
Iowa Tort Claims Act (ITCA), not the ICRA. See id. at 905. Since
14An act of Congress amending Title VII does not amend the ICRA. The ICRA
requires the plaintiff to prove a specific employment practice caused the disparate
impact. Hy-Vee, 453 N.W.2d at 518. The Iowa legislature has not amended the ICRA to
add a provision in response to our decision in Hy-Vee or the congressional amendment
to Title VII over twenty-three years ago. I would not read such an exception into the
ICRA in the guise of judicial interpretation. See Ackelson v. Manley Toy Direct, L.L.C.,
832 N.W.2d 678, 689 (Iowa 2013) (declining to reinterpret the ICRA to allow punitive
damages in light of precedent disallowing punitive damages and legislative
acquiescence). Whether to create such an exception in the ICRA is a policy choice to be
made by the legislature.
70
Hubbard, our court has repeatedly relied on subsequent federal
interpretations of the Federal Tort Claims Act to construe the ITCA. See
Walker v. State, 801 N.W.2d 548, 569 (Iowa 2011) (Mansfield, J.,
dissenting) (collecting Iowa opinions that rely on federal cases decided
after the ITCA’s enactment). Indeed, our court has cited Hubbard as
support for the proposition that “[i]nterpretations of the federal act are
instructive”—without limiting that observation to cases decided before
the enactment of the ITCA. Annear v. State, 419 N.W.2d 377, 379 (Iowa
1988); see also Meier v. Sulhoff, 360 N.W.2d 722, 728 (Iowa 1985)
(McCormick, J., dissenting) (citing Hubbard and stating “[b]ecause [the
Iowa Occupational Safety and Health Act] is based on the federal model,
the federal court interpretations constitute persuasive authority for
giving a similar interpretation to our statute”); Adam v. Mount Pleasant
Bank & Trust Co., 340 N.W.2d 251, 252 (Iowa 1983) (“Because our
statute is based on the federal Tort Claims Act, we assume our
legislature intended it to have the same meaning as the federal statute.
Hubbard, 163 N.W.2d at 911. Federal decisions interpreting the federal
act are therefore entitled to great weight. Id. at 909.”). In any event, our
court, before today, has never relied on Hubbard to interpret the ICRA.
The Iowa bench and bar has long understood federal authorities
provide guidance to interpret the ICRA. This lends predictability to an
important area of the law, particularly when the legislature has long
acquiesced in our interpretations of the ICRA based on federal
interpretations of the counterpart federal statutory language. See
Ackelson v. Manley Toy Direct, L.L.C., 832 N.W.2d 678, 688–89 (Iowa
2013) (discussing legislative acquiescence). Remarkably, the majority
fails to acknowledge that our court decided many cases by relying on
federal interpretations of equivalent statutory language in the civil rights
71
acts. See, e.g., Casey’s Gen. Stores, Inc. v. Blackford, 661 N.W.2d 515,
519 (Iowa 2003) (“[W]e have looked to the corresponding federal statutes
to help establish the framework to analyze claims and otherwise apply
[ICRA].”); Schlitzer v. Univ. of Iowa Hosps. & Clinics, 641 N.W.2d 525, 529
(Iowa 2002) (“The common goals of the Federal ADA and our civil rights
act have encouraged us to look to the federal statutory and regulatory
standards in applying our statute.”); Vivian, 601 N.W.2d at 873 (“The
ICRA was modeled after Title VII of the United States Civil Rights Act.
Iowa courts therefore traditionally turn to federal law for guidance in
evaluating the ICRA.”); Vincent v. Four M Paper Corp., 589 N.W.2d 55, 59–
60 (1999) (“[W]e have recognized the common purposes of the [F]ederal
[ADA] . . . and the ICRA as well as the similarity in terminology of the
statutes. Moreover, we have looked to the ADA and federal regulations
implementing that [A]ct in developing standards under the ICRA for
disability discrimination claims.” (Citations omitted.)); Hulme v. Barrett,
449 N.W.2d 629, 631 (Iowa 1989) (“Our court has ruled that civil rights
cases brought under chapter [216] will be guided by federal law and
federal cases.” (Internal quotation marks omitted.)); Probasco v. Iowa
Civil Rights Comm’n, 420 N.W.2d 432, 435 (Iowa 1988) (“On several
occasions, our courts have looked to the federal system for guidance in
construing our similar civil rights legislation. We employ this approach
again today because, as demonstrated below, the civil rights legislation
and implementing rules involved in this case mirror those adopted on the
federal level.” (Citations omitted.)); Iowa State Fairgrounds Sec. v. Iowa
Civil Rights Comm’n, 322 N.W.2d 293, 296 (Iowa 1982) (“The parties
assume we will find federal cases persuasive in selecting the analytical
framework for deciding discrimination cases under the Iowa civil rights
statute. This assumption is warranted by our prior decisions.”); Wilson-
72
Sinclair Co. v. Griggs, 211 N.W.2d 133, 139 (Iowa 1973) (noting “the
similarity of language” of Title VII and the ICRA and relying on
“numerous relevant federal decisions”); Iron Workers Local No. 67 v. Hart,
191 N.W.2d 758, 765 (Iowa 1971) (recognizing the ICRA contains
“[a]nalogous language” to Title VII and “is another manifestation of a
massive national drive to right wrongs prevailing in our social and
economic structures for more than a century”).15 None of these cases
interpreting the ICRA limited consideration of federal authorities to those
decided before enactment of the Iowa statute.
In the majority’s view, if it does not like how federal decisions were
decided, it can freely disregard them. The cost of this new approach is
the stability and predictability of our law. See State v. Short, ___ N.W.2d
___, ___ (Iowa 2014) (Waterman, J., dissenting). After today, it is at best
unclear what weight litigants and district court judges or the court of
appeals should give federal cases when divining how our court will
construe equivalent provisions in the ICRA. This is unfortunate. A more
restrained majority would have deferred its pronouncements until a case
in which they made a difference to the outcome.
B. Does Substantial Evidence Support the District Court’s
Finding that the State’s Decision-Making Process Was Capable of
Separation for Analysis? The district court specifically found the
State’s decision-making process was capable of separation for analysis. I
agree with the majority that this is a question of fact. See, e.g., McClain
v. Lufkin Indus., Inc., 519 F.3d 264, 278 (5th Cir. 2008). We are bound
15The same majority has ignored an even longer line of cases adhering to our
court’s long-standing practice of relying on federal decisions under the Fourth
Amendment when interpreting the nearly identical search-and-seizure provision in the
Iowa Constitution. See State v. Short, ___ N.W.2d ___, ___ (2014) (Waterman, J.,
dissenting).
73
by the district court’s factual finding if it is supported by substantial
evidence. Schlitzer, 641 N.W.2d at 529. Plaintiffs argue on appeal there
was no substantial evidence supporting this finding and that their
evidence proved as a matter of law that the State’s decision-making
process was incapable of separation for analysis. I disagree.
Plaintiffs assert that the State’s record-keeping practices precluded
separate analysis of the decision-making process because (1) subjective
assessments pervaded the decision-making process; (2) subjective
assessments have a “ripple effect,” whereby the discriminatory impact
accumulates as applicants move through the hiring process; and (3) the
State did not retain some records regarding applicant evaluations.
The district court rejected all three theories based on the factual
record developed at trial. To put the district court’s dispositive factual
finding into its legal context, I construe the operative statutory language.
The phrase “each particular challenged employment practice” in 42
U.S.C. § 2000e-2(k)(1)(B)(i) indicates that a particular employment
practice is distinct from a decision-making process. A particular
employment practice is considered an element within the larger decision-
making process. Congress’s choice to use the singular form, combined
with the words “particular” and “each” demonstrates that the challenged
practice must be individually identified. “This syntax would be strange if
a plaintiff could bundle a number of discrete steps of a multi-phase
hiring process together, based on a common characteristic.” Davis v.
Cintas Corp., 717 F.3d 476,496, 497 (6th Cir. 2013) (holding plaintiff “did
not identify a ‘particular employment practice’ within the meaning of Title
VII by pointing to all of the subjective elements in the [employer’s hiring
system]”).
74
I first consider plaintiffs’ contentions regarding subjective decision-
making. How subjective decision-making plays into hiring and
promotion depends on the type of job and the process used to fill it.
Thus, subjective conduct may serve as the “particular employment
practice” underlying a disparate impact claim if plaintiffs can prove that
the conduct operates uniformly throughout an employer’s decision-
making process to cause a disparate impact. For example, in Davis, the
Sixth Circuit rejected plaintiff’s argument that the defendant’s decision-
making process was incapable of separation when “not all of the system’s
subjective elements are the same.” Id. at 497. The court noted “[e]ach
different interview . . . has a specific interview guide, and different
managers conduct interviews at different stages of the process.” Id.Likewise, in Bennett v. Nucor Corp., the Eighth Circuit concluded “this is
not a case where the components of the employer’s selection process
were incapable of separation.” 656 F.3d 802, 817 (8th Cir. 2011). The
court pointed to the fact that the employer’s “five departments used a
variety of measures to evaluate candidates for promotion, including
objective criteria like experience, training, disciplinary history, and test
scores, and subjective criteria such as interview performance and the
opinion of the candidate’s current supervisor.” Id. at 817–18; see also
Grant, 446 F. App’x at 740 (“The problem, however, is that Plaintiffs
make no effort to isolate any of these [decision-making] practices or to
examine their individual effects on the promotions process.”).
Chin v. Port Authority is a good example of a subjective process that
was incapable of separation for purposes of analysis. 685 F.3d 135,
154–55 (2d Cir. 2012). In that case, the plaintiffs had passed exams and
had been placed on eligibility lists for promotions to sergeant but had not
received promotions. Id. at 142–43. The plaintiffs proved that the
75
decisions as to whom would be promoted from the eligible list were based
on essentially subjective recommendations by commanding officers and
subjective final decisions by the superintendent. Id. at 154–55. The
process was entirely discretionary, and the final decision rested with one
person—the superintendent. See id.Wal-Mart, filed shortly before this case went to trial, is instructive.
There, the Supreme Court decertified a nationwide class of 1.5 million
current and former employees of Wal-Mart alleging gender
discrimination. Wal-Mart, 564 U.S. at ___, ___, 131 S. Ct. at 2547, 2561,
180 L. Ed. 2d at 385, 400. Pay and promotion decisions at Wal-Mart
were generally committed to local managers’ broad, subjective discretion.
Id. at ___, 131 S. Ct. at 2547, 180 L. Ed. 2d at 385. However, plaintiffs
alleged that a strong and uniform corporate culture led that discretion to
be exercised, even subconsciously, against the hiring and advancement
of women. Id. at ___, 131 S. Ct. at 2548, 180 L. Ed. 2d at 386. Yet, the
Court held “[r]espondents [did] not identif[y] a common mode of
exercising discretion that pervades the entire company.” Id. at ___, 131
S. Ct. at 2554–55, 180 L. Ed. 2d at 393. The district court observed
Wal-Mart “highlights both the need to identify a particular employment
practice, the pertinence of discretionary decisionmaking in the
employment process, and the interconnection with statistical proof.”
The district court here found that “[t]he State’s system has both
objective and subjective components” which are “not so confused . . . as
to prevent Plaintiffs from honing in on one particular employment
practice.” This finding is supported by the record. For example, the DAS
screen that occurred at step one, the résumé score sheets that were part
of step two in some departments, the second résumé screens and
spelling and grammar screens that were part of step two in some
76
departments, and the interview score sheets that were part of step three
in some departments were objective components that could have been
separately analyzed. This was not a purely subjective process.
Furthermore, while there undoubtedly was subjectivity and—as
the plaintiffs credibly demonstrated—implicit bias in multiple State
hiring decisions during the relevant time period, this case is a far cry
from Chin, in which the decision-making process ultimately came down
to a single individual’s discretion. By contrast here, the State’s hiring
decisions were in the hands of numerous department managers. The
State of Iowa Executive Branch employs a far more diverse range of job
categories than any of the defendants in the cases in which subjective
decision-making has served as a basis for attacking the decision-making
process as a whole. Those working for the State include corrections
officers, parole officers, registered nurses, food service workers, power
plant engineers, state troopers, and DOT road-maintenance crew
members, to name a few. As noted by the district court, “The State
system can be dissected into numerous decision-making stages among
numerous independent agencies of the executive branch,” and there is
“inconsistency in results among the numerous agencies.” Miller showed
that, at step two, African Americans had a lower statistical likelihood of
getting an interview in some departments but not in others. These
outcomes could be due to either objective or subjective considerations,
but either way they do not suggest the existence of a common practice
(even a subjective one) that would justify class-wide relief. See Wal-Mart,
564 U.S. at ___, 131 S. Ct. at 2555–56, 180 L. Ed. 2d at 393 (noting that
discretion when exercised by different managers in different ways is not
in itself an employment practice).
77
No witness affirmatively testified the process was incapable of
separation for analysis. To the contrary, the State’s expert, Miller,
“emphatically” testified that the State’s hiring system was capable of
separation for analysis. Plaintiffs on appeal do not challenge the
admissibility of Miller’s testimony. His testimony alone constitutes
substantial evidence supporting the district court’s finding.
Furthermore, Miller actually did separate the process into the three steps
for purposes of his analysis.
Additionally, plaintiffs’ own experts testified that the State’s
decision-making process could be separated for analysis. The district
court noted that Greenwald conceded the State’s employment process
could be separated to individually analyze each step of the process and
commented “that one ‘could determine whether or not there was bias at
each one of the independent stages of the hiring process.’ ” Kaiser
discussed how written résumés and in-person interviews can trigger
implicit racial biases differently. The State’s statistical expert,
Killingsworth, utilized a regression analysis to evaluate the State’s hiring
process using data from different stages of the process and different
departments. The district court summarized:
Dr. Killingsworth was capable of separating data for
the referral stage, the interview stage, and the hiring stage
for African Americans as compared to whites over a period of
years. His work permits a fact finder to analyze the
departments of the executive branch in each of those years
at each of those stages. This charting of State data allows a
fact finder to compare the various departments and draw
important conclusions as to how the individual departments
compare to each other at the various stages. While he
elected not to begin his analysis at the application stage, the
data available would permit this. And it could be used to
track applicant flow from that first stage to the hiring of one
applicant for the specific job opening in any given
department—including the progress of each applicant
through the various stages and examining the particular
screening-devices used.
78
Further, Killingsworth “could limit his models by new applicants or
incumbent State employees, initial pay, and performance evaluations.”
However, he did not correlate any of his findings to a particular screening
device.
Significantly, Miller performed separate statistical analyses by
department on the three steps in the hiring process. In fact, as I discuss
below, the NAACP relies on that analysis in pursuing an alternative
argument for reversal. Furthermore, Killingsworth, as quoted above,
agreed with Miller that the three steps could be separated for purposes of
analysis. Additionally, in four pages of findings on separability, the
district court repeatedly referred to expert testimony that indicated the
stages of the process could be separated.
This does not foreclose the possibility of further separation, as the
district court found. For example, the record revealed other employment
practices with potentially discriminatory effects such as résumé screens
could have been isolated and separately analyzed. But, in any event, the
record supports the district court’s finding that the plaintiffs did not
meet their burden. Plaintiffs did not even attempt to challenge an actual
employment practice and simply argued that the “total result” (to use
Killingsworth’s phrase) was discriminatory.
In response to plaintiffs’ “ripple effect” argument, the district court
found “the fact that one errant practice compounds a problem at a later
stage of the process does not prevent investigation of either the earlier or
later separate stage or practice.” I agree. Though the use of a
discriminatory criterion at one stage may impact applicants throughout a
decision-making process, such a “ripple effect” does not preclude
separate analysis. In some cases, subjective and objective criteria may
be so intertwined as to prevent separation. See McClain v. Lufkin Indus.,
79
Inc., 187 F.R.D. 267, 275 (E.D. Tex. 1999) (finding an employer’s actions
inseparable for analysis when “[t]he disparate impacts begin on the day
one is hired and are potentially magnified each time one’s career . . .
intersects a subjective decision-making process”). But, plaintiffs here
have not proven this is such a case. The very point of regression
analysis is to allow isolation of particular elements and determine
whether there is a “ripple effect.”
Finally, substantial evidence supports the district court’s finding
that the plaintiffs failed to show the condition of the paper files precluded
separate analysis of specific employment practices within the State’s
hiring process. Killingsworth never looked at the hiring files.
Significantly, as the majority notes, the district court found “the hiring
files themselves permit a focused view of the different screening-devices
and practices in referral, interview or hiring of applicants for any given
job between the departments.” Plaintiffs make much of the missing
documents from the files, but eighty-six percent of the files included
interview questions, eighty-one percent had interview notes, and seventy-
three percent provided an interview scoring matrix. Half of the files had
reference checks. Eighty-four percent of the files also contained an
individual’s application, résumé, and cover letter. As the majority
recognizes, Greenwald commented, “The hiring files of the State are a
gold mine that hasn’t been analyzed.” There is no evidence that the
plaintiffs took even one of the objective standards the State employed
and tried to determine whether it had a disparate impact using the
available records.
Plaintiffs argue that the sample sizes would get smaller and
statistical reliability would decline as one tries to analyze the effect of a
practice that was only employed in certain areas at certain times. This
80
may be correct, but does not excuse the failure to try. The statute does
not permit courts to aggregate a collection of different hiring practices
across different times and departments just to increase the size of the
sample.
The only case plaintiffs cite in support of their argument that a
lack of records can prevent separate analysis is the district court opinion
in Chin. Notably, the Second Circuit on appeal relied on a different
rationale from the district court—i.e., that the process was basically
entirely subjective and the final decision rested with one person. Chin,
685 F.3d at 154–55. Stepping back and looking at Chin with the benefit
of both opinions, the lack of records and the subjectivity of the process
appear to be two sides of the same coin: No one documented why
someone received a promotion because there was nothing to document.
Port Auth. Police Asian Jade Soc. of N.Y. & N.J. Inc. v. Port Auth., 681
F. Supp. 2d 456, 460–61, 464–65 (S.D.N.Y. 2010) (finding the decision-
making process could not be separated “both because records do not
exist for every step and because the causal role of each step is called into
doubt by the records that do exist”). Here, by contrast, it is undeniable
that the records were incomplete, but equally irrefutable that no one who
tried to analyze the records was unable to do so. As the district court
found,
[t]he State’s data—its recordkeeping—while not perfect, was
sufficient for both Dr. Killingsworth and Dr. Miller to
conduct their analyses. The presence in the record of their
models and opinions dispels the argument that the State’s
recordkeeping is such that it precludes anything but a
“systemic employment practice.”
I conclude substantial evidence supports the district court’s findings
regarding the State’s record keeping.
81
I reiterate the importance of separately analyzing the different
processes used by the various departments. In some departments,
African-American applicants fared better than white applicants at certain
stages; in others they fared worse, even much worse. This suggests that
the different screening processes used by the departments may have had
different impacts on applicant success. As the district court noted, these
“[v]arying outcomes between the departments and stages of the process
invite[] localized scrutiny.”
For example, based on the record in this case, I have concerns
about the various résumé screening devices used by State departments
at the step-two level. It is certainly possible that inappropriate screening
devices may have been used in some of the departments in which Miller
found a statistically significant disparity between blacks and whites at
step two. But, it is just a possibility and not an aspect of the case that
the plaintiffs chose to pursue.
Here, the district court observed that “the hiring files themselves
permit a focused view of the different screening-devices and practices in
referral, interview or hiring of applicants for any given job between the
departments.” For example, as the court pointed out, DAS has a system-
wide applicant screening manual, and an analysis could have been
performed based on the manner in which DAS instructs managers on the
use of the manual.
The district court went on to comment that “one can focus on any
number of discrete employment decisions made as individual, separable,
identifiable particular employment practices” and then gave two more
examples:
One example of the separability of the process is the
‘second résumé screen’ that had been utilized by some
departments. It was a particular employment practice that
82
was evaluated, determined to be inappropriate, and curtailed
at the suggestion of DAS. Similar refinement of the hiring
process by focusing on the inappropriate use of ‘spelling and
grammar screening’ is another example of DAS having
addressed a particular employment practice. The record
reflects not only the ability to focus on these particular
employment practices but when and which separate
agencies responded to the suggested changes by DAS.
The foregoing has shown why I am confident the court reached the
right conclusion. The district court methodically went through the
record, focused appropriately on the testimony of statistical experts for
each side, and identified various employment practices that could have
been separately analyzed, including the three steps in the employment
practice (separately analyzed by Miller) and more specific practices within
those steps.
For all these reasons, I conclude substantial evidence supports the
district court’s finding that the plaintiffs failed to show the State’s
employment practices are not capable of separation for purposes of
analysis. I close with three observations.
First, it is significant that the NAACP, in a well-argued amicus
brief, relies on some of the same data that plaintiffs dismiss as
inadequate. Thus, the NAACP asserts that Miller’s findings show there
was an adverse impact at step two in eight departments that employed
approximately fifty-eight percent of the State workforce. On that basis, it
asks us to reverse the district court.
In my view, the NAACP’s brief raises serious questions as to
whether the State committed unlawful discrimination. The problem with
this argument is that it is not the case the plaintiffs elected to pursue.
For instance, we do not know what practices were followed in those eight
departments during step two. This seems like a relatively
straightforward inquiry that could have been pursued in discovery. We
83
also do not know which representative plaintiffs—if any—applied for jobs
with those departments. And, the remedies sought by the plaintiffs
would apply not only to those departments but to the State as a whole.
Instead of narrowing their focus, plaintiffs brought a class action
alleging a common pattern of discrimination by the entire state executive
branch of government. Having brought such a large case, it was then up
to the plaintiffs to undertake the considerable work required to prove it.
Under the prevailing law, this included analysis of specific hiring
practices and their impact. Plaintiffs did not meet their burden.
Second, I do not downplay what this case has shown. Even
according to Miller, it appears African Americans on the whole were
disadvantaged in getting job interviews from some agencies, including
some large departments like the department of human services and the
department of transportation. This conclusion, from a defense expert, is
disturbing although inconclusive. The district court, in my view
correctly, questioned why “given all this data held by the State, it did not
on a regular basis review it, as did these experts, with an eye toward
measuring impact.”
Third, it bears emphasis that the defeat of this class action does
not bar a person who believes he or she was a victim of discrimination
from bringing an individual lawsuit on his or her own against the State
for new acts of discrimination. What is clear here is that plaintiffs failed
to prove, because they ultimately did not try to prove, that the State of
Iowa engaged in specific employment practices that had discriminatory
effects against African-American job applicants and that would allow for
class-wide relief.
For the foregoing reasons, I agree the district court’s judgment
must be affirmed.
Mansfield and Zager, JJ., join this special concurrence.