What to Know About Route EEO A look in the rear-view mirror, monitor the crossroads, check for blind spots, and
look ahead at developments in the enforcement of laws prohibiting employment
discrimination.
Kristin H. Johnson, Executive Director, Iowa Civil Rights Commission
U.S. Supreme Court
EEOC v. Abercrombie & Fitch Stores, Inc.
___ U.S. ___, 135 S.Ct. 2028 (2015).
Hani Khan, 19, worked at Hollister, an Abercrombie subsidiary, and was fired for wearing her hijab. She is one of
three women who sued Abercrombie for failing to accommodate their religious requirements.
• “[A]n applicant need only show that his need for an
accommodation was a motivating factor in the
employer’s decision.”
• The intentional discrimination prohibition of Title VII
disallows certain motives, regardless of the employer’s
actual knowledge.
Young v. United Parcel Serv., Inc.,
___ U.S. ___, 135 S.Ct. 1338 (2015).
• There is no independent duty to reasonably accommodate pregnancy under Title VII.
• The Court established a modified McDonnell Douglas burden-shifting analysis for claims arising under the PDA rather than a failure-to-accommodate analysis as traditionally used for disabilities. The prima facie case requires:
• A showing that the employer’s policies impose a significant burden on pregnant workers and its reasons are not sufficiently strong to justify the burden.
• A showing that the employer accommodates a large percentage of non-pregnant employees while failing to accommodate a large percentage of pregnant employees.
• A showing that the policies of the employer operate discriminatorily in practice.
McQuistion v. City of Clinton
872 N.W.2d 817 (Iowa 2015)
• Holding: There is no stand-alone duty to reasonably
accommodate pregnancy under Iowa Code Chapter 216.
• Iowa courts will apply the same McDonnell-Douglas
burden-shifting analysis used in Young v. UPS.
Baker v. City of Iowa City
867 N.W.2d 44 (Iowa 2015)
Under the facts of the case, enforcement of an
antidiscrimination ordinance did not violate the employer’s
rights of freedom of association, freedom of speech, due
process, and equal protection under the U.S. Constitution.
Dindinger v. Allsteel, Inc.
860 N.W.2d 557 (Iowa 2015)
• Iowa Code § 216.6A only applies
prospectively, to conduct that occurred
after its effective date of July 1, 2009.
• An employee can assert a wage
discrimination claim under Iowa Code §
216.6.
Iowa Court of Appeals
Polk v. Dep’t of Admin. Servs.
____ N.W.2d ____, 2015 WL 1817031
(Iowa Ct. App. April 22, 2015)
(unpublished)
• Defendants failed to preserve the issue for its review
because the defendants did not present this argument to
the district court.
• The Court specifically noted the defendants’ failure to
even mention “significant factor” in either its proposed
jury instructions or in its objection.
Wright v. Ross Holdings, LLC
____ N.W.2d ____, 2015 WL 1848534
(Iowa Ct. App. April 22, 2015)
• The conduct did not affect the terms or
conditions of her employment as required to
establish a hostile work environment claim.
• Wright was not constructively discharged.
Minnihan v. Mediacom Commc’ns Corp.
779 F.3d 803 (8th Cir. 2015)
• Driving was an essential function of position.
• Minnehan was unable to perform the essential
function with a reasonable accommodation.
• Mediacom made a good faith effort to assist in
finding a reasonable accommodation.
Hilde v. City of Eveleth
777 F.3d 998 (8th Cir. 2015)
• Hilde’s retirement eligibility not a
nondiscriminatory reason for failing to
promote.
• Fact issues precluded summary judgment.
Walz v. Ameriprise Fin., Inc.
779 F.3d 842 (8th Cir. 2015)
• Walz failed to demonstrate that she was able to
perform essential functions of her position.
• Ameriprise was not liable under ADA for its
failure to accommodate employee.
Sellers v. Deere & Co.
791 F.3d 938 (8th Cir. 2015)
• No demotion as adverse employment action.
• Increased duties did not constitute adverse
employment action.
• Failed to establish prima facie case of
harassment.
Iowa District Court Jury
Verdicts
Tibodeau v. CDI, LLC
• Sexual harassment
• Retaliation
• Sexual discrimination/constructive discharge
• Plaintiff's verdict as to defendant CDI only.
• Back Pay - $50,000
• Past Emotional Distress $75,000
• Future Emotional Distress - $100,000.
Hollinger v. State
• Employment Discrimination - Plaintiff alleges defendant
failed to hire her for position based upon her actual
disability
• Directed verdict for Defendant – holding Plaintiff was not
disabled as defined in Iowa Code Chapter 216
• Plaintiff has appealed
Huber v. Krestena
• Employee was terminated for failing to provide Dr.'s note
stating that he did not have AIDS
• Verdict for Plaintiff - $26,283
• 4,283 (past earnings); $22,000 (emotional distress)
Schilling v. Saur Danfoss
• Sexual orientation harassment, retaliation
• Jury verdict for defense
Gray-Fisher v. State of Iowa
• Sex and age discrimination
• Jury verdict for defense
Schemel v. Laxmee
• Sexual Harassment
• National origin harassment
• Retaliation
• Back Pay: $446
• Past Emotional distress: $150,000
• Future Emotional distress: $350,000
Oyler v. Laxmee
• Sexual Harassment
• National origin harassment
• Retaliation
• Back Pay: $16,484.01
• Past Emotional distress: $200,000
• Future Emotional distress: $400,000
• Work Comp punitive damages: $100,000;
Vetter v. State of Iowa
• Disability Discrimination
• Verdict for Plaintiff - $599,732.13
Reasonable Accommodation
of Pregnancy
• SF 313
• HF 2165
• SF 2098
• Simply provide an employer shall provide reasonable
accommodations for pregnancy
• Provides examples of reasonable accommodation
• Excludes from reasonable accommodation any action that
would impose an undue hardship on the employer
• HF 2165 also gives examples of actions constituting
prohibited discrimination, such as reassignment to avoid job
modifications, retaliation, and requiring leave where
reasonable accommodation could allow the employee to
continue to work.
SF 313 and HF 2165
SF 2098
• Much more extensive
• Requires accommodating lactation/pumping
• Defines undue hardship in detail
• Lists specific prohibited actions
• Creates a rebuttable presumption than an accommodation
does not impose an undue hardship if the employer
provides a similar accommodation to another class of
employees
• Notice requirement
Wage Gap Task Force
• SSB 3071
• HF 2159
• New subsection with 7 new discriminatory practices:
• Prohibit employees from sharing compensation information
• Require employees to sign a waiver agreeing not to share compensation information
• Retaliate against an employee for sharing compensation information
• Seek salary history about prospective employees from former employers
• Release salary history information about former employees to their prospective employer
• Advertise a job opening anywhere without including minimum pay rate for the position
• Paying a new hire less than the advertised minimum pay rate
• Increases the employer’s burden to prove bona fide factor
other than protected classification for a wage disparity.
• Provides an affirmative defense shall not apply if the
employee demonstrates that an alternative business
practice exists that would serve the same business
purpose without producing the wage disparity.
• Provides that the affirmative defense is not available if
the bona fide factors cited by employer account for the
entire pay differential.
• Also Creates an Equal Pay Task Force to study:
• Extent of wage disparities
• Factors that cause the wage disparities
• Economic consequences of the wage disparities
• Actions likely to lead to the elimination and prevention of
such disparities.
Questions?