                IN THE SUPREME COURT OF IOWA
                               No. 12–0442

                           Filed June 21, 2013


TAMMIE ACKELSON,
    Appellant,

vs.

MANLEY TOY DIRECT, L.L.C. and TOY NETWORK, L.L.C., et al.,
        Appellees.
-------------------------------------------------------------
ROBIN DRAKE and HEATHER MILLER,
        Appellants,

vs.

MANLEY TOY DIRECT, L.L.C. and TOY NETWORK, L.L.C., et al.,
    Appellees.



      Appeal from the Iowa District Court for Warren County, Gregory A.

Hulse, Judge.



      Plaintiffs appeal a ruling of the district court granting defendants’

motion to strike plaintiffs’ claim for punitive damages. AFFIRMED AND

REMANDED.



      Jill M. Zwagerman and Bryan P. O’Neill of Newkirk Law Firm,

P.L.C., Des Moines, for appellants.



      Frank B. Harty, Mary E. Funk, Debra L. Hulett of Nyemaster

Goode, P.C., Des Moines, and Frances M. Haas of Nyemaster Goode,

P.C., Cedar Rapids, for appellees.
                                   2

      Thomas J. Duff of Duff Law Firm, P.L.C., Des Moines, Kodi A.

Brotherson and Katie A. Ervin Carlson of Babich Goldman, P.C.,

Des Moines, and Emily E. McCarty of Fiedler & Timmer, P.L.L.C.,

Urbandale, for amicus curiae Iowa Association of Justice.

      James P. Craig, Brenda K. Wallrichs, and Megan R. Dimitt of

Lederer Weston Craig, P.L.C., Cedar Rapids, for amicus curiae Iowa

Defense Counsel Association.

      Russell L. Samson and Sara R. Laughlin of Dickinson, Mackaman,

Tyler & Hagen, P.C., Des Moines, for amicus curiae Iowa Association of
Business and Industry.
                                     3

CADY, Chief Justice.

        In this appeal, we must decide whether the Iowa Civil Rights Act

(ICRA) permits a district court to award punitive damages. The district

court held an award of punitive damages is not permitted under the

ICRA.    On our review, we affirm the decision of the district court and

remand for further proceedings.

        I. Background Facts and Proceedings.

        Tammie   Ackelson,   Robin   Drake,    and   Heather    Miller   were

employees of Manley Toy Direct and Toy Network, both limited liability
companies located in Indianola, Iowa, with parent companies in

Hong Kong.       The businesses purchase and sell toys and other

merchandise.

        In 2010, the three employees initiated lawsuits against the

businesses, collectively referred to as Manley Toy, and certain individuals

associated with the businesses.          The petitions alleged employment

practice claims based on a violation of the ICRA. The claims alleged a

supervisor named Tim Downey and a coworker named Steffen Hampton

repeatedly made vulgar and harassing comments to the women,

including demeaning name-calling, and sexually explicit and offensive

discussions    about   Downey’s   sexual    relationships.     The   lawsuits

articulated claims for sexual harassment, sex discrimination, and

retaliation under the ICRA and demanded punitive damages. No other

claims were alleged.

        Manley Toy moved to strike the claim for punitive damages. The

district court granted Manley Toy’s motion. It reasoned that the court

could only grant relief that the civil rights commission was authorized to

grant, and punitive damages are not available under the ICRA.
                                            4

       The plaintiffs sought, and we granted, interlocutory appeal. They

ask us to review our prior decisions holding that punitive damages are

not available for claims under the ICRA and to interpret the ICRA to

permit courts to award punitive damages.

       II. Standard of Review.

       We review a decision by the district court on a motion to strike for

correction of legal errors.        See Iowa R. App. P. 6.907.             Similarly, we

review an interpretation of a statute for correction of legal errors. Rolfe

State Bank v. Gunderson, 794 N.W.2d 561, 564 (Iowa 2011).
       III. Discussion.

       A. ICRA       Framework.            The     ICRA      prohibits     unfair     and

discriminatory employment practices against a person “because of” the

person’s membership in a protected class and provides for a claim for

relief. Iowa Code §§ 216.6(1)(a), .15 (Supp. 2009). Persons who seek to

assert their rights under the ICRA, however, must follow the statutory

processes to obtain relief. See id. §§ 216.15–.16. This procedure begins

by filing a complaint with the state civil rights commission, but

eventually permits an action to be pursued in court.1


       1The complaint process begins when a person claiming to be injured by a

discriminatory practice files an administrative complaint with the state civil rights
commission. See Iowa Code § 216.15(1). When a complaint is received, the complaint
is investigated and then referred to an administrative law judge who determines
whether probable cause exists for the complaint.           Id. § 216.15(3)(a).   If the
administrative law judge finds no probable cause exists, the complaint is dismissed and
cannot continue. Id. §§ 216.15(3)(c), 216.16(3)(a)(1). If probable cause exists, the
commission may pursue administrative remedies. Id. § 216.15(3)(c).
         The complainant may leave the administrative track and choose to file a suit in
district court. Filing an administrative complaint is a mandatory prerequisite to filing a
complaint in district court. See id. § 216.16(1) (providing that a complainant “must
initially seek an administrative relief”). After a complaint has been on file with the ICRA
for sixty days, unless an administrative judge has made a finding that no probable
cause exists, the complainant may obtain a release to file an action in the district
court—a so-called “right to sue letter.” Id. § 216.16(3)(a). The issuance of a right-to-
sue letter bars the commission from pursuing administrative remedies further. Id.
                                          5

       Section 216.16(6) of the ICRA provides that “[t]he district court

may grant any relief in an action under this section which is authorized

by section 216.15, subsection 9, to be issued by the commission.” Id.

§ 216.16(6). In turn, section 216.15(9) provides:

       If . . . the commission determines that the respondent has
       engaged in a discriminatory or unfair practice, the
       commission . . . shall issue an order requiring the
       respondent to cease and desist from the discriminatory or
       unfair practice and to take the necessary remedial action as
       in the judgment of the commission will carry out the
       purposes of this chapter.

Id. § 216.15(9). Additionally, in allowing the ICRA to award damages to

the complainant, section 216.15(9)(a)(8) states:

       For the purposes of this subsection and pursuant to the
       provisions of this chapter “remedial action” includes but is
       not limited to the following:
               ....
             . . . Payment to the complainant of damages for an
       injury caused by the discriminatory or unfair practice which
       damages shall include but are not limited to actual damages,
       court costs and reasonable attorney fees.

Id. § 216.15(9)(a)(8).

       The ICRA was enacted in 1965. 1965 Iowa Acts ch. 121 (codified

at 105A.1–.12 (1966)). It was subsequently amended in 1978 to require

the exhaustion of administrative remedies before proceeding into court

through the statutory procedures that remain in the Act today. See 1978

Iowa Acts ch. 1179 (codified at § 601A.1–.19 (1979)).                 However, the

statutory language at issue in this case has not been changed in any

meaningful way since the 1978 amendments.2

______________________
§ 216.16(4). Once the action is in district court, it proceeds as an ordinary action at
law.
       2ICRA  has been amended over the years, but the statutory language at issue in
this case has gone unchanged. See 1995 Iowa Acts ch. 129 (adding provisions related
to housing discrimination); 1998 Iowa Acts ch. 1202, §§ 36–37 (amending ICRA to
                                           6

       B. Existing Case Authority.               We have previously held the

legislative scheme of the ICRA does not permit an award of punitive

damages. See Chauffeurs, Teamsters & Helpers, Local Union No. 238 v.

Iowa Civil Rights Comm’n, 394 N.W.2d 375, 384 (Iowa 1986).                            In

Chauffeurs, a union sought judicial review of a commission decision

awarding emotional distress and punitive damages to an individual

excluded from the union on the basis of race.                 Id. at 377. The union

argued the damages section under the ICRA did not give the commission

statutory authority to award punitive damages. Id. at 384. In response,
the commission argued the plain meaning of the statutory phrase

“ ‘damages shall include but are not limited to actual damages’ ” implied

the   availability    of   punitive    damages.         Id.    (quoting    Iowa   Code

§ 601A.15(8)(a)(8) (1979) (current version at id. § 216.15(9)(a)(8) (Supp.

2009))).

       We held the statutory phrase pertaining to damages “[did] not

necessarily imply punitive damages are available.”                   Id.    We relied

primarily on the reasoning of High v. Sperry Corp., 581 F. Supp. 1246,

1247–48 (S.D. Iowa 1984).           See Chauffeurs, 394 N.W.2d at 384.              The

court in High found the district court’s authority to award damages is no

more extensive than that of the commission. 581 F. Supp. at 1247. It

reasoned that although “actual damages” is often synonymous with


______________________
conform with changes to the Iowa Administrative Procedure Act); 2005 Iowa Acts ch. 23
(modifying the certified mail requirement in chapter 216); 2007 Iowa Acts ch. 110, § 1
(amending section 216.15 to comply with section 614.8); 2008 Iowa Acts ch. 1028
(extending the time period during which a complaint may be filed with the commission);
2009 Iowa Acts ch. 96 (making wage discrimination an unfair practice under ICRA and
providing treble damages for willful violations of workers’ rights); 2009 Iowa Acts ch.
178, §§ 25–27 (reducing paperwork in ICRA proceedings); see also 1991 Iowa Acts ch.
184 (empowering the commission to award relief for discrimination in housing, creating
a private cause of action in district court for housing discrimination, and permitting an
award of actual and punitive damages for instances of housing discrimination).
                                     7

“compensatory damages”—which seemingly includes everything other

than punitive damages—“actual damages” also sometimes merely means

“pecuniary losses and [does] not include other types of non-punitive

damages, such as special damages.” Id. “Thus, the phrase ‘not limited

to actual damages’ in the Iowa statute [did] not necessarily imply the

availability of punitive damages.” Id. The court predicted:

      [I]f and when the issue is presented to the Iowa Supreme
      Court, it will interpret the term “actual damages” in the Iowa
      statute to be a reference only to pecuniary losses and will
      construe the phrase in which that term is found—“which
      damages shall include but are not limited to actual
      damages”—to fall short of enabling the commission to award
      punitive damages. I think it most unlikely that the Iowa
      Supreme Court would ever find power in an administrative
      agency to award punitive damages to a claimant unless there
      were an express legislative grant of such power.

Id. at 1248.

      We confirmed this prediction, stating, “The language ‘but not

limited to actual damages’ in [ICRA] does not necessarily imply punitive

damages are available.” Chauffeurs, 394 N.W.2d at 384. We also relied

on “[t]he general rule . . . that an administrative agency cannot award

punitive damages absent express statutory language allowing such an
award.” Id.

      Four years later, in Smith v. ADM Feed Corp., we reiterated our

interpretation of the ICRA that punitive damages were not available

unless expressly provided. 456 N.W.2d 378, 383 (Iowa 1990), overruled

on other grounds by McElroy v. State, 703 N.W.2d 385, 394–95 (Iowa

2005). We stated:

      Unlike [the Federal Fair Housing Act], [the ICRA] does not
      permit an administrative agency, or the district court . . . , to
      award punitive damages.      In Chauffeurs, we noted the
      general rule that an agency cannot award punitive damages
      absent express statutory language and concluded that the
      language “but not limited to actual damages” in section
                                     8
      601A.15(8)(a)(8)    [current   version  at   Iowa     Code
      § 216.15(9)(a)(8) (Supp. 2009)] does not necessarily imply
      that punitive damages are available.

Smith, 456 N.W.2d at 383 (citation omitted).          We also observed “[t]he

district court sits as the commission and is empowered to grant only that

relief authorized by section [216.15].”     Id. at 381 (citing Iowa Code

§ 601A.16(5) (current version at id. § 216.16(6))).

      Following Chauffeurs and Smith, we have continued to mention in

a series of cases that punitive damages are not an available remedy

unless expressly provided for under the ICRA.           See, e.g., Channon v.
United Parcel Serv., Inc., 629 N.W.2d 835, 849 (Iowa 2001). The last case

to make this pronouncement was in 2004.           See Van Meter Indus. v.

Mason City Human Rights Comm’n, 675 N.W.2d 503, 515 (Iowa 2004)

(citing Chauffeurs and holding that if the state civil rights commission

lacks the power to award punitive damages so does a local civil rights

commission). One case, City of Hampton v. Iowa Civil Rights Commission,

cited Chauffeurs when it held the plaintiff introduced insufficient

evidence to support an emotional-distress award. 554 N.W.2d 532, 537

(Iowa 1996).    It reasoned that an emotional-distress award that was

clearly excessive given the scant evidence the plaintiff introduced would

be essentially punitive, and since Chauffeurs held punitive damages are

unavailable under ICRA the emotional-distress award had to be reduced

commensurate with the evidence introduced at trial. Id. Thus, our prior

cases have made it abundantly clear that the ICRA does not permit

courts to award punitive damages unless it expressly says so.

      C. Development of the Law Outside of Iowa.              While we have

consistently declared since 1986 that punitive damages are not available

under our civil rights statute, a survey of the landscape of the law

outside Iowa reveals a split of authority, with considerable legislative and
                                            9

judicial activity.3 We review this law to give us a better understanding of

the issue we must decide.

       To begin with, we recognize Congress amended Title VII of the

Federal Civil Rights Act in 1991 to provide for a broader array of

damages, including punitive damages. See Civil Rights Act of 1991, Pub.

L. No. 102-166, § 102, 105 Stat. 1071, 1072 (codified at 42 U.S.C.

§ 1981a(a)(1) (1994)). It enacted the amendment “to strengthen existing

protections and remedies available under federal civil rights laws to

provide more effective deterrence and adequate compensation for victims
of discrimination.”      H.R. Rep. No. 102-40 (II), at 1 (1991), reprinted in

1991 U.S.C.C.A.N. 694, 694.

       Additionally, many state statutes now expressly permit either the

district court or an administrative agency to award punitive damages.4


       3Some   states have statutes dealing with employment discrimination that do not
create a private cause of action in district court. See, e.g., Ga. Code Ann. §§ 45-19-38
to -39, (West 2003) (providing for resolution of complaints by a special master with an
opportunity to appeal to a district court); N.C. Gen. Stat. § 143-422.2 (2001)
(recognizing a public policy against discrimination but not providing for an independent
cause of action); S.C. Code Ann. §§ 1-13-90, -100 (2005) (permitting an individual to file
a complaint with the state human affairs commission, but noting in section 1-13-100
that “[n]othing in this chapter may be construed to create a cause of action other than
those specifically described in Section 1-13-90”); Utah Code Ann. § 34A-5-107
(LexisNexis 2011) (providing for administrative proceedings but not a district court
action). Similarly, some states, such as Alabama and Mississippi, do not appear to
have statutes on point; plaintiffs in those states must rely on Title VII.
       4See,  e.g., Ark. Code Ann. § 16-123-107(c)(2)(A) (2006); Del. Code Ann. tit. 19,
§ 715(1)(c) (2005); Fla. Stat. Ann. § 760.11(5) (West 2010); Haw. Rev. Stat. § 368-17(a)
(1993); Idaho Code Ann. § 67-5908(3)(e) (2006); Me. Rev. Stat. Ann. tit. 5,
§ 4613(2)(B)(8) (2013); Md. Code Ann., State Gov’t § 20-1013(e)(1) (LexisNexis 2009);
Mass. Gen. Laws Ann. ch. 151B, § 9 (West 2004); Minn. Stat. Ann. § 363A.29, subd.
4(a) (West 2012); Mo. Ann. Stat. § 213.111(2) (West 2004); Or. Rev. Stat. Ann.
§ 659A.885(3)(a) (West 2013); R.I. Gen. Laws Ann. § 42-112-2 (West 2006); Tex. Lab.
Code Ann. § 21.2585(a)(2) (West 2006); Vt. Stat. Ann. tit. 21, § 495b(b) (2009); P.R.
Laws Ann. tit. 1, § 14 (2008). New Jersey presents a special case. Section 10:5-13
provides: “All remedies available in common law tort actions shall be available to
prevailing plaintiffs. These remedies are in addition to any provided by this act or any
other statute.” N.J. Stat. Ann. § 10:5-13 para. 2 (West 2002). Section 10:5-3 is a
declaration of purpose and legislative findings, but explicitly contemplates that punitive
                                           10

On the other hand, some jurisdictions explicitly prohibit awards of

punitive damages in all or some circumstances.5


______________________
damages are available to ordinary common law tort plaintiffs and accordingly should be
available to plaintiffs pursuing claims under the New Jersey act. Id. § 10:5-3 para. 3.
        Similarly, New Hampshire explicitly permits the district court to award
“enhanced compensatory damages.” N.H. Rev. Stat. § 354-A:21-a(I) (LexisNexis 2008).
Enhanced compensatory damages are awarded under similar circumstances as punitive
damages but reflect a different underlying rationale. See State v. Hynes, 978 A.2d 264,
273 (N.H. 2009); see also Vratsenes v. N.H. Auto, Inc., 289 A.2d 66, 68 (N.H. 1972)
(rejecting deterrence rationale for punitive damages and instead allowing the size of the
compensatory damage award to reflect the aggravating circumstances). As Hynes
acknowledged, these enhanced damages are not meant to be punitive but to
compensate the victim. 978 A.2d at 273. Notwithstanding, given New Hampshire’s
long-standing rule regarding punitive damages, the New Hampshire General Court’s
addition of enhanced compensatory damages in 2006 appears to reflect the same
approach as the above states.
       Some of these jurisdictions cap the amount of punitive damages the jury may
award a successful plaintiff. See, e.g., Ark. Code Ann. § 16-123-107(c)(2)(A) (providing a
cap for the total of compensatory and punitive damages a plaintiff may be awarded
based on the total number of employees the defendant employs).
       5See,  e.g., Mont. Code Ann. § 49-2-506(2) (2011) (prohibiting punitive damages
except in cases of housing discrimination); N.Y. Exec. Law § 297(9) (McKinney 2005)
(permitting a court to award punitive damages “in cases of housing discrimination
only”); Va. Code Ann. § 2.2-3903(C) para. 2 (2011 & Supp. 2012). Similarly, an
employee discharged in contravention of Nebraska’s Fair Employment Practice Act may
not be awarded punitive damages in accordance with the Nebraska Constitution.
Pedersen v. Casey’s Gen. Stores, Inc., 978 F. Supp. 926, 935 (D. Neb. 1997) (“[P]unitive,
vindictive, or exemplary damages contravene Neb. Const. art. VII, § 5, and thus are not
allowed in this jurisdiction.” (citation and internal quotation marks omitted)).
        Michigan long ago adopted a rule regarding punitive damages, which is
conceptually similar to New Hampshire’s rule, stated above, but similar to Nebraska’s
rule in effect in this context. See Eide v. Kelsey-Hayes Co., 427 N.W.2d 488, 498–501
(Mich. 1988) (Griffin, J., concurring in part and dissenting in part). In Michigan,
“exemplary damages may not be awarded to punish. They are available, if at all, only
as an element of compensatory damages.” Id. at 498; see also Veselenak v. Smith, 327
N.W.2d 261, 265 (Mich. 1982) (rejecting a distinction between mental-anguish damages
and separate exemplary damages). Explaining this rule, the Michigan Supreme Court
has said: “When compensatory damages can make the injured party whole, this court
has denied exemplary damages.” Hayes-Albion v. Kuberski, 364 N.W.2d 609, 617
(Mich. 1984). Thus, the remedies section of Michigan’s civil rights act—which defines
“damages” as “damages for injury or loss caused by each violation of this act” and does
not otherwise explicitly provide for exemplary damages, Mich. Comp. Laws Ann.
§ 37.2801(3) (West 2001)—does not include exemplary damages. See Eide, 427 N.W.2d
at 500–01; id. at 493 (majority opinion) (adopting the reasoning of the partial dissent
regarding exemplary damages).
                                           11

        Some states have enacted statutes that authorize a variety of relief

for    successful       employment    discrimination       plaintiffs,   but     neither

specifically     mentions    punitive     damages      nor   contains     open-ended

language such as “included, but not limited to.”                See, e.g., Colo. Rev.

Stat. § 24-34-405 (2012);6 775 Ill. Comp. Stat. Ann. 5/8A-104 (West

2011); N.M. Stat. Ann. § 28-1-13(D) (2012); Ky. Rev. Stat. Ann. § 344.450

(LexisNexis 2011); Okla. Stat. Ann. tit. 25, § 1350(G) (West 2008 & Supp.

2013); S.D. Codified Laws § 20-13-35.1 (2004); Wis. Stat. § 111.39(4)(c)

(2011 & Supp. 2012); Wyo. Stat. Ann. § 27-9-106(n) (2011). A number of
statutes include more open-ended, or seemingly open-ended, language

identifying the relief the district court may award. See, e.g., Alaska Stat.

§§ 18.80.220, 22.10.020(i) (2012); Ariz. Rev. Stat. Ann. § 41-1481(G)

(2011); Conn. Gen. Stat. Ann. § 46a-104 (West 2009); D.C. Code § 2-

1403.16(b) (LexisNexis 2012); Ind. Code Ann. §§ 22-9-1-6(j), -17(b)

(LexisNexis 2010), Kan. Stat. Ann. § 44-1005(k) (2000); La. Rev. Stat.

Ann. §§ 51:2261(C), 2264 (2012); Nev. Rev. Stat. § 233.170(4)(b) (2011);

N.D.     Cent.     Code     § 14-02.4-20     (2009);     Ohio    Rev.     Code     Ann.

§ 4112.05(G)(1) (LexisNexis 2007); 43 Pa. Cons. Stat. Ann. § 962(c)(3)

(West 2009); Tenn. Code Ann. §§ 4-21-306(a)(7), -311(b) (2011); Wash.

Rev. Code Ann. § 49.60.030(2) (West 2008); W. Va. Code Ann. § 5-11-

13(c) (LexisNexis 2011).7


        6The  Colorado General Assembly amended section 24-34-405 in its most recent
legislative session. See 2013 Colo. Legis. Serv. ch. 168, § 1. The amended statute will
permit complainants bringing claims on or after January 1, 2015, to seek punitive
damages. See 2013 Colo. Legis. Serv. ch. 168, § 1, 5 (permitting recovery of punitive
damages in Colo. Rev. Stat. § 24-34-405(3)(a)). This Act will take effect August 7, 2013,
unless “a referendum petition is filed pursuant to section 1(3) of article V of the
[Colorado] constitution.”
        7California’sFair Employment and Housing Act is effectively similar to these
statutes. See Cal. Gov’t Code § 12965(b) (West 2005 & Supp. 2013). It provides a right
of action for persons claiming to be aggrieved by a discriminatory employment practice
but does not mention relief other than attorney’s fees. See id. The California Supreme
                                           12

       Of these latter jurisdictions, some courts have concluded that, due

in part to the absence of express statutory provision for punitive

damages in their statutes, a district court may not award punitive

damages.8      See Cronin v. Sheldon, 991 P.2d 231, 236–37 (Ariz. 1999);

Ind. Civil Rights Comm’n v. Alder, 714 N.E.2d 632, 638 (Ind. 1999);

Devillier v. Fid. & Deposit Co. of Md., 709 So. 2d 277, 282 (La. Ct. App.

1998); Sands Regent v. Valgardson, 777 P.2d 898, 900 (Nev. 1989); Hoy

v. Angelone, 720 A.2d 745, 749–51 (Pa. 1998); Carver v. Citizen Utils. Co.,

954 S.W.2d 34, 35–36 (Tenn. 1997); Dailey v. N. Coast Life Ins. Co., 919
P.2d 589, 592 (Wash. 1996). Other jurisdictions have interpreted their

acts to permit a district court to award punitive damages. See Loomis

Elec. Prot., Inc. v. Schaefer, 549 P.2d 1341, 1343 (Alaska 1976); Arthur

Young & Co. v. Sutherland, 631 A.2d 354, 372 (D.C. 1993); Ellis v. N.D.

State Univ., 764 N.W.2d 192, 203 (N.D. 2009); Rice v. CertainTeed Corp.,

704 N.E.2d 1217, 1220–21 (Ohio 1999); Haynes v. Rhone-Poulenc, Inc.,

521 S.E.2d 331, 346–48 (W. Va. 1999).                In Connecticut, an apparent

split of authority exists among the superior courts regarding the power of

the court to award punitive damages.                    Compare Collier v. State,

______________________
Court interpreted this statute to permit a court to award punitive damages in
appropriate cases because a long-standing California rule allows civil litigants all forms
of relief, including punitive damages, unless the statute evinces a contrary intent. See
Commodore Home Sys., Inc. v. Super. Ct. of San Bernadino, 649 P.2d 912, 914–18 (Cal.
1982).
       8Kansas  does not appear to have rendered a decision regarding whether punitive
damages are available under its current statute. However, a decision under a prior
version of the statute, which had substantively different language from the ICRA, held
punitive damages were not available. See Woods v. Midwest Conveyor Co., 648 P.2d
234, 244–45 (Kan. 1982), superseded by statute on other grounds as stated in Kan.
Human Rights Comm’n v. Dale, 968 P.2d 692, 696 (Kan. 1998). The Woods court viewed
the Kansas Act as primarily equitable, not legal, and held that punitive damages, a legal
remedy, are not specifically authorized by statute. See Woods, 648 P.2d at 244–45.
When the statute was amended to enlarge the scope of available relief and include
compensatory damages, punitive damages were not similarly included. See Kan. Stat.
Ann. § 44-1005(k).
                                   13

No. CV96-80659, 1999 WL 300643, at *3–4 (Conn. Super. Ct. May 3,

1999) (permitting a district court to award punitive damages), with

Wright v. Colonial Motors, Inc., No. CV116008335, 2012 WL 2044635, at

*1–2 (Conn. Super. Ct. May 16, 2012) (holding a court may not award

punitive damages).

      Some of the courts that have rejected punitive damages claims

have strong, well-established public policies against permitting punitive

damages without express legislative authorization.      See Devillier, 709

So. 2d at 282 (“Punitive damages cannot be awarded unless authorized
by statute.”); Dailey, 919 P.2d at 590 (“Governing resolution of this case

is the court’s long-standing rule prohibiting punitive damages without

express legislative authorization.”); see also McCoy v. Ark. Natural Gas

Co., 143 So. 383, 385–86 (La. 1932) (“There is no authority in the law of

Louisiana for allowing punitive damages in any case, unless it be for

some particular wrong for which a statute expressly authorizes the

imposition of some such penalty.”). These jurisdictions are comparable

to Nebraska, which has held that “punitive, vindictive, or exemplary

damages contravene Neb. Const. art. VII, § 5, and thus are not allowed.”

Distinctive Printing & Packaging Co. v. Cox, 443 N.W.2d 566, 574 (Neb.

1989); see also Pedersen, 978 F. Supp. at 935. On the other hand, other

jurisdictions mention public policy considerations to help recognize

punitive damages.     The Supreme Court of Alaska concluded “the

legislature intended to put as many ‘teeth’ into [the] law as possible.”

Loomis, 549 P.2d at 1343.

      This review not only reveals divergent approaches to punitive

damages in civil rights litigation, but shows that the issue, for the most

part, has received much attention.      In particular, it has also been an

issue that has actively engaged legislatures and required courts to
                                     14

interpret statutory enactments.      Over the years, this time-honored

process has allowed the states to carve out their position on punitive

damages.

      D. Public Policy Considerations.         As the review of the law in

other jurisdictions reveals, public policy considerations can play a critical

role in the decision to permit or deny punitive damages.        The role of

public policy in permitting an award of punitive damages under the ICRA

is highlighted by the amicus briefs filed in this case, including the brief

filed by the Association of Business and Industry (ABI).
      First, it asserts Iowa businesses prefer a climate in which punitive

damages are not available. It is argued that punitive damage awards can

give rise to adverse consequences to businesses, including the threat of

insolvency. See W. Kip Viscusi, The Social Costs of Punitive Damages in

Environmental and Safety Torts, 87 Geo. L.J. 285, 285 (1998). ABI also

points out that “Iowa is geographically surrounded by states that have

business-friendly legal climates with respect to this issue. . . .      Iowa

competes with these states to attract new businesses, as well as for the

jobs and commerce they generate.” Second, ABI argues that the costs of

punitive damages awards will be passed on to consumers and

shareholders.   See Lisa Litwiller, From Exxon to Engle: The Futility of

Assessing Punitive Damages as Against Corporate Entities, 57 Rutgers L.

Rev. 301, 334–35 (2004).

      Of course, arguments can be made based on public policy that

would support punitive damages.           As the plaintiff’s argue, punitive

damages are well-established under Iowa’s common law. See Lacey v.

Straughan, 11 Iowa 258, 260 (1860).         Punitive damages by definition

punish defendants who have intentionally violated another’s rights. See

Ward v. Ward, 41 Iowa 686, 688 (1875). They exist to protect society and
                                     15

the public in general. Sebastian v. Wood, 246 Iowa 94, 100, 66 N.W.2d

841, 844 (1954); see also David G. Owen, A Punitive Damages Overview:

Functions, Problems and Reform, 39 Vill. L. Rev. 363, 374–81 (1994).

      In particular, punitive damages would serve to deter purposeful

employment discrimination.      Cf. Humburd v. Crawford, 128 Iowa 743,

744, 105 N.W. 330, 330–31 (1905) (reasoning that the strong public

policy opposing discrimination in public accommodations, evidenced by

the Iowa Civil Rights Act of 1884, could be effectuated through a private

cause of action for damages).       Indeed, punitive damages have been
permitted in a variety of employment-related common law cases to

vindicate workers’ rights.      See, e.g., Cawthorn v. Catholic Health

Initiatives Iowa Corp., 743 N.W.2d 525, 528–29 (Iowa 2007) (discussing

whether defendant’s conduct in a case involving wrongful discharge in

violation of public policy met the standard for punitive damages set forth

in section 668A.1); Tullis v. Merrill, 584 N.W.2d 236, 238, 241 (Iowa

1998) (affirming punitive damage award against an employer who

retaliated against an employee in violation of the public policy expressed

in Iowa’s Wage Payment Collection Law). Additionally, punitive damage

awards—like awards of attorney’s fees—can play a crucial role in public

interest cases. See Ayala v. Ctr. Line, Inc., 415 N.W.2d 603, 605 (Iowa

1987) (“The reason for awarding attorneys fees in [a civil rights case] is to

ensure that private citizens can afford to pursue the legal actions

necessary to advance the public interest vindicated by the policies of civil

rights acts.”).

      E. Current Status of Iowa Law. The plaintiffs suggest we landed

a knockout blow to the rule against the recovery of punitive damages

under the ICRA in McElroy, and a careful application of the rules of

statutory construction reveal the ICRA is properly interpreted to permit
                                    16

punitive damages. In McElroy, we overruled our prior pronouncement in

Smith that litigants seeking money damages under the ICRA were not

entitled to a jury trial. 703 N.W.2d at 394–95. Instead, we held such

claims were subject to the rights of civil litigants to a jury trial. Id. We

characterized the core premise of Smith, that “the district court in an

ICRA action ‘sits as the [commission] and is empowered only to grant

that relief authorized’ by the ICRA,” as “fundamentally flawed.” See id. at

393 (quoting Smith, 456 N.W.2d at 381). We also quoted from the Smith

dissent, observing the legislature sought to provide “ ‘an alternative to
the administrative proceeding in the form of an ordinary civil action.’ ”

McElroy, 703 N.W.2d at 394 (quoting Smith, 456 N.W.2d at 387–88

(Carter, J., dissenting)).

       We then said:

       While it is true the ICRA generally requires plaintiffs to
       exhaust their administrative remedies, there is nothing
       extraordinary about the nature of a district court proceeding
       brought once those remedies are so exhausted. The ICRA is
       no different than any other statute providing a cause of
       action. The ICRA has always permitted a plaintiff to sue for
       monetary damages in the district court. For this reason, it is
       not surprising the legislature did not expressly indicate
       claimants were entitled to a jury trial under the ICRA—it was
       assumed.

Id.

       The plaintiffs rely on our own criticism of Smith as a signal that

McElroy not only opened the door for jury trials in ICRA claims, but also

to allowing in other components of the civil justice system, including

punitive damages.       They then developed a detailed analysis of the

relevant statutory language of the ICRA to support an interpretation that

the legislature implicitly intended for punitive damages to be awarded.

This analysis was met with a strong countervailing argument by Manley

Toy.
                                    17

      F. Statutory Interpretation. We approach the resolution of the

issue in this case the same as we approach the resolution of all issues of

statutory interpretation.   Our task is to ascertain the intent of our

legislature. Andover Volunteer Fire Dep’t v. Grinnell Mut. Reins. Co., 787

N.W.2d 75, 81 (Iowa 2010). This task is not only tied to the separation-

of-powers doctrine, but it is rooted in “the underlying principles that the

legislature makes the law and the courts interpret the law.” Id.

      Importantly, the rules of interpretation established to assist courts

in determining legislative intent do not follow a common path, only a
common outcome. At times, various rules are used to the exclusion of

others. In this case, we decline to revisit an interpretation based on the

words and phrases used in the relevant statute.

      Instead, the path we follow in this case is one primarily built on

the venerable principles of stare decisis and legislative acquiescence. We

are slow to depart from stare decisis and only do so under the most

cogent circumstances. See State v. Liddell, 672 N.W.2d 805, 813 (Iowa

2003). Moreover, we presume the legislature is aware of our cases that

interpret its statutes. Baumler v. Hemesath, 534 N.W.2d 650, 655 (Iowa

1995). When many years pass following such a case without a legislative

response,   we   assume     the   legislature   has   acquiesced   in   our

interpretation. Gen. Mortg. Corp. of Iowa v. Campbell, 258 Iowa 143, 152,

138 N.W.2d 416, 421 (1965).

      We have clearly and repeatedly stated our conclusion that the

ICRA does not implicitly permit an award of punitive damages.           This

message has been a reoccurring pronouncement over the last twenty-

seven years. No significant legislative changes have been made since our

first pronouncement in 1986 that would even hint at a shift in legislative

intent since that time.
                                    18

      During this same period, the issue of punitive damages in civil

rights claims has received broad national attention, making it very likely

that our legislature would have taken action to alter our interpretation if

it disapproved. Our review of the landscape of the law across the nation

shows that this has been a topic of national conversation. Additionally,

the issue is injected with public policy considerations, making it an issue

particularly appropriate for legislative consideration.    See Jensen v.

Sattler, 696 N.W.2d 582, 586 (Iowa 2005) (“The scope of the statute is a

matter of public policy and therefore within the province of the
legislature.”); cf. Robinson v. Bognanno, 213 N.W.2d 530, 532 (Iowa 1973)

(“[A]n amendment [to enlarge the class protected by the Dram Shop Act]

would be the exclusive province of the legislature.”), overruled on other

grounds by Lewis v. State, 256 N.W.2d 181, 192 (Iowa 1977). Overall, we

think our legislature would be quite surprised to learn if we decided to

reverse course and take a different position under the guise of statutory

interpretation. We did our job twenty-seven years ago and will leave it

for the legislature to take any different approach. The specific arguments

presented by the plaintiffs are not so powerful or obvious that they

plainly undermine our prior line of cases. Additionally, we recognize our

legislature has demonstrated that it knows how to permit punitive

damages for specific civil rights actions when it wishes to do so.

Compare Iowa Code § 216.15(9)(a)(8) (permitting the commission to

award complainant “damages for an injury caused by the discriminatory

or unfair practice which damages shall include but are not limited to

actual damages” in an employment discrimination action), with id. §

216.17A(6)(a) (permitting the district court to award “actual and punitive

damages” in a housing discrimination action). It expressly provided for

punitive damages for housing discrimination when it added section
                                     19

216.17A(6)(a) in 1991, only five years after Chauffeurs and just a year

after Smith.   See 1991 Iowa Acts ch. 184, § 11 (allowing award of

“[a]ctual and punitive damages”) (codified at Iowa Code § 601A.17A

(1993) (current version at id. § 216.17A(6)(a))).

      We acknowledge that we reversed course in McElroy when we

overruled Smith and interpreted the ICRA to allow for jury trials in court

proceedings.    Yet, Smith was a very narrow majority decision and

preceded McElroy by just fifteen years.       Additionally, the question of

punitive damages has been a very visible issue for a long time across the
nation, and Iowa’s position has been staked out. It is a position that is

ingrained in our legal culture. Thus, the backdrop to McElroy was much

different than it is to this case, and we are confident that our legislature

has acquiesced in our position after twenty-seven years. Under all the

circumstances, we conclude our legislature did not intend to allow for

punitive damages under the ICRA except when it expressly did so.

      IV. Conclusion.

      We affirm the decision of the district court and remand for further

proceedings.

      AFFIRMED AND REMANDED.
