                    IN THE SUPREME COURT OF IOWA
                              No. 12–0913

                          Filed July 18, 2014

                       Amended December 2, 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) (2007). 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, fourteen 3 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 analysis 4 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 Greenwald,

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”).
                                     14

      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
                                    15

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 at

843–48 (plurality opinion), with id. at 1000–11, 108 S. Ct. at 2792–98,
                                       17

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
                                          18

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

certiorari 5 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 ethnic 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 at

845 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 at

744–54.    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. 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 at

518–19. 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 not 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
                                     39

system.   The State notes that Killingsworth 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, 297 F.R.D. 75, 84 (S.D.N.Y. 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., 672 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., 285 F.R.D. 492, 509 (N.D.
Cal. 2012) (noting that the proposed class was 700, which was much smaller than the
1.5 million employees who 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.
                                      42

923, 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’ antidiscrimination 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
                                         51

at 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 caselaw 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. 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, 854 N.W.2d 421, 452–54 (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
                                          56

knowing and 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 Act 8—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, 854

N.W.2d at 452–54 (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 reasons, 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,

      [t]he 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, 851 N.W.2d

474, 475 (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, 851 N.W.2d 474, 511 (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.
