               IN THE SUPREME COURT OF IOWA
                                   No. 08–0428

                                 Filed June 4, 2010


MELISSA LEE RENDA,

      Appellant,

vs.

IOWA CIVIL RIGHTS COMMISSION,

      Appellee.


      Appeal from the Iowa District Court for Polk County, Donna L.

Paulsen, Judge.



      Petitioner appeals from district court’s decision affirming Iowa Civil

Rights Commission’s decision that it did not have jurisdiction to hear

petitioner’s claim.    AFFIRMED IN PART, REVERSED IN PART AND

CASE REMANDED.



      Roxanne Barton Conlin and Melinda Ellwanger of Roxanne Conlin
& Associates, P.C., Des Moines, for appellant.



      Thomas      J.   Miller,   Attorney   General,   and   Teresa   Baustian,

Assistant Attorney General, for appellee.
                                     2

HECHT, Justice.

      Melissa Renda, an inmate at the Mt. Pleasant Correctional Facility,

filed a complaint with the Iowa Civil Rights Commission (ICRC) alleging

sexual harassment and retaliation in her employment and housing. The

ICRC concluded it did not have jurisdiction to hear Renda’s complaint

because the correctional facility was not a “dwelling,” and, as an inmate,

Renda was not an “employee” for purposes of the Iowa Civil Rights Act

(the Act). Renda sought judicial review, and the district court affirmed

the decision of the ICRC. On appeal, we agree that a correctional facility

is not a dwelling for purposes of the Act, but we conclude Renda’s status

as an inmate working within the prison did not necessarily preclude her

status as an employee. We affirm in part, reverse in part, and remand

for further proceedings consistent with this opinion.

      I. Background Facts and Proceedings.

      Melissa Renda filed a complaint with the ICRC on June 27, 2007.

According to the complaint, Renda began working as a receiving and

discharge clerk in November 2005 while she was incarcerated at the

Mt. Pleasant Correctional Facility. According to Renda, the clerk position

was the most respected and highest paid job within the prison. Shortly

after she started working in the receiving and discharge department,

officer Jim Ackles, who also worked in the department, began making

romantic overtures toward her.      In addition to the sexual advances,

Ackles also gave her gifts and money in violation of prison policy. At one

point, he forced her to forge a property receipt to cover up the fact that

he had given her a CD. Ackles threatened to have Renda transferred to

the correctional institution in Mitchellville if she reported his conduct to

prison authorities.
                                            3

      In June of 2006, Renda was approached by an investigator

following up on an anonymous report of Ackles’ inappropriate behavior.

Out of fear, Renda refused to talk to the investigator and was punished

by being placed in solitary confinement for nine days. After getting out of

solitary confinement, she returned to her job but was fired a few days

later “on trumped up charges.” Eventually, Renda cooperated with the

investigation into officer Ackles’ behavior, and when the investigation

was closed, Renda was informed that she was “100% credible” and that

her allegations were “founded.” Despite the results of the investigation,

Renda became depressed about the ordeal and lost her “level 4 status”

because she was irritable to others.            She felt ostracized, and she was

later denied a job in the recreation department because of the forged

property receipt incident.

      In her complaint filed with the ICRC, Renda claimed she was

discriminated against on the basis of her sex and that she was retaliated

against in the areas of employment and housing. The ICRC closed her

complaint as “non-jurisdictional” because the complaint did “not allege a

‘discriminatory practice’ as defined by Iowa Code Chapter 216.”

Specifically, the ICRC determined that an inmate is not considered an

employee and a prison is not considered a dwelling under the Act.

      Renda sought judicial review, and the district court affirmed the

decision of the ICRC. Renda appeals.

      II. Scope and Standards of Review.

      Judicial review of an agency decision is controlled by the

provisions of Iowa Code section 17A.19(10) (2009). 1 ABC Disposal Sys.,

Inc. v. Dep’t of Natural Res., 681 N.W.2d 596, 601 (Iowa 2004). We will


      1Unless   otherwise noted, all statutory citations are to the current version of the
Iowa Code.
                                       4

apply the standards of section 17A.19(10) to determine if we reach the

same results as the district court. Id. The district court may grant relief

if the agency action has prejudiced the substantial rights of the petitioner

and if the agency action meets one of the enumerated criteria contained

in section 17A.19(10)(a) through (n). Id.

      The parties disagree about whether subsection (c) or (l) applies to

our review of ICRC’s interpretation of the terms “employee” and

“dwelling” as used in the Act.       Renda contends section 17A.19(10)(c)

applies because the ICRC has not been clearly vested with the authority

to interpret the Act, and accordingly, we are free to substitute our

judgment for that of the ICRC. See Iowa Code § 17A.19(10)(c). The ICRC

argues subsection (l) applies because it has been vested with the

authority to interpret the Act, and, as a result, we must defer to the

agency’s interpretation and may only reverse if the interpretation is

“irrational, illogical, or wholly unjustifiable.” Id. § 17A.19(10)(l).

      We begin by noting that despite the parties’ articulation of the

issue as whether the ICRC has the authority to interpret the Act, we do

not view the issue so broadly. The focus of our inquiry is not whether

the ICRC has the authority to interpret the entire Act. Rather, we must

determine whether the interpretation of the specific terms “employee”

and “dwelling” has been clearly vested in the discretion of the

commission.

      We have not addressed the standard of review of statutory

interpretation   by   the   ICRC    subsequent     to   the   amendment   and

clarification of chapter 17A in 1998.        We addressed the standard of

review of the ICRC’s interpretation of various provisions of the Act on

several occasions before chapter 17A was amended.               Unfortunately,

however, many of our decisions from that period did not clearly articulate
                                      5

the standard of review applied in reviewing the commission’s statutory

interpretations.   In Good v. Iowa Civil Rights Commission, 368 N.W.2d

151 (Iowa 1985), we concluded that
             [i]n reviewing an administrative agency’s interpretation
      of a statute, this court may give some weight to the agency’s
      determination, but “the meaning of a statute is always a
      matter of law, and final construction and interpretation of
      Iowa statutory law is for this court.” Our review in this case,
      however, is not without its limited perimeters. Although
      construction of this statute is a function of the courts, we
      have always held that a reviewing court should give
      appropriate weight to the judgment of the agencies charged
      with the special duty of administering a particular statute.

Good, 368 N.W.2d at 155 (quoting Schmitt v. Iowa Dep’t of Soc. Servs.,

263 N.W.2d 739, 745 (Iowa 1978)); see also Sommers v. Iowa Civil Rights

Comm’n, 337 N.W.2d 470, 472 (Iowa 1983) (stating that when reviewing

the ICRC’s interpretation of statutory provisions “we may give deference

to, but are not bound by,” the ICRC’s interpretation because “[t]he

ultimate interpretation of Iowa statutory law is the province of the

supreme court”). We do not find these early articulations of the level of

deference to be granted the ICRC’s statutory interpretation particularly

illuminating to our determination of whether subsection (c) or (l) of the

current section 17A.19(10) applies.
      The amendments to chapter 17A clarified when the court should

give deference to an agency’s interpretation of law.
             Normally, the interpretation of a statute is a pure
      question of law over which agencies are not delegated any
      special powers by the General Assembly so, a court is free to,
      and usually does, substitute its judgment de novo for that of
      the agency and determine if the agency interpretation of the
      statute is correct. . . . But, where the General Assembly
      clearly delegates discretionary authority to an agency to
      interpret or elaborate a statutory term based on the agency’s
      own special expertness, the court may not simply substitute
      its view as to the meaning or elaboration of the term for that
      of the agency but, instead, may reverse the agency
      interpretation or elaboration only if it is arbitrary, capricious,
                                      6
      unreasonable, or an abuse of discretion—a deferential
      standard of review.
Arthur E. Bonfield, Amendments to Iowa Administrative Procedure Act,
Report on Selected Provisions to Iowa State Bar Association and Iowa

State Government 62 (1998) [hereinafter Bonfield].          Notably, section

17A.10(c) does not require that the discretion be “expressly” vested in the

agency, but instead uses the less restrictive term “clearly.”

      This means that the reviewing court, using its own
      independent judgment and without any required deference
      to the agency’s view, must have a firm conviction from
      reviewing the precise language of the statute, its context, the
      purpose of the statute, and the practical considerations
      involved, that the legislature actually intended (or would
      have intended had it thought about the question) to delegate
      to the agency interpretive power with the binding force of law
      over the elaboration of the provision in question.
Id. at 63.

      The question of whether interpretive discretion has clearly been

vested in an agency is easily resolved when the agency’s enabling statute

explicitly addresses the issue.    For example, in Iowa Ass’n of School

Boards v. Iowa Department of Education, 739 N.W.2d 303 (Iowa 2007), we

noted that the enabling statute provided the director of the department of

education “ ‘shall . . . [i]nterpret the school laws and rules relating to the

school laws.’ ” Iowa Ass’n of Sch. Bds., 739 N.W.2d at 307 (alterations in

original) (quoting Iowa Code § 256.9(16) (2003)).      The explicit grant of

authority made clear the General Assembly’s intent to vest the discretion

to interpret the laws with the department, and we concluded that the

department’s interpretation was entitled to deference pursuant to section

17A.19(10)(c).   Similarly, in Mosher v. Department of Inspections &

Appeals, 671 N.W.2d 501, 509–10 (Iowa 2003), we concluded that

because the General Assembly had explicitly given the authority to

interpret the phrase “dependent adult” to a different agency, by
                                     7

implication it had not delegated the interpretive authority to the

department of inspections and appeals.

      However, because the legislature does not usually explicitly

address in legislation the extent to which an agency is authorized to

interpret a statute, most of our cases involve an examination of the

phrases or statutory provisions to be interpreted, their context, the

purpose of the statute, and other practical considerations to determine

whether the legislature intended to give interpretive authority to an

agency.    This sort of analysis has not proven conducive to the

development of bright-line rules. It must always involve an examination

of the specific statutory language at issue, as well as the functions of and

duties imposed on the agency.       It is conceivable that the legislature

intends an agency to interpret certain phrases or provisions of a statute,

but not others.

      Our first occasion to examine whether an agency had been granted

the authority to interpret a statute under the amended chapter 17A was

City of Marion v. Iowa Department of Revenue & Finance, 643 N.W.2d 205

(Iowa 2002).   In that case, we confronted the question of whether the

department had correctly interpreted the term “athletic sport” to include

swimming. 643 N.W.2d at 206. We noted that “athletic sport” was not

defined in the statute and that the department had been given the

authority to create rules “ ‘necessary and advisable for its detailed

administration.’ ” Id. at 207 (quoting Iowa Code § 422.68(1) (2001)). We

concluded that because the term was not defined in the statute and

because the department must necessarily interpret the term in order to

carry out its duties, the power to interpret the term was clearly vested in

the department and deference was therefore given. Id.
                                    8

      We have reached similar conclusions in several more recent cases.

In Auen v. Alcoholic Beverages Division, 679 N.W.2d 586, 590 (Iowa

2004), we concluded the division had been vested with the authority to

interpret the phrase “directly or indirectly being interested in the

ownership” of another licensee.      We again relied on the division’s

rulemaking authority and the necessity of interpreting that phrase in

conducting the division’s work.    Auen, 679 N.W.2d at 590.      Likewise,

ABC Disposal Systems addressed whether the Iowa Department of

Natural Resources (DNR) had the authority to interpret the term

“sanitary disposal project.” 681 N.W.2d at 602. Because the DNR had

the authority to establish rules “ ‘relating to the establishment and

location of sanitary disposal projects,’ ” we concluded the legislature had

clearly vested the authority to define what constituted a “sanitary

disposal project.” Id. (quoting Iowa Code § 455B.304(1) (2001)); see also

City of Coralville v. Iowa Utils. Bd., 750 N.W.2d 523, 527 (Iowa 2008)

(concluding the “ ‘broad general powers to effect the purposes’ of chapter

476, which includes the authority to regulate public utility rates,” vested

the utilities board with authority to interpret the rates and services

provision of section 476.1 (quoting Iowa Code § 476.2(1) (2005)));

Birchansky Real Estate, L.C. v. Iowa Dep’t of Pub. Health, 737 N.W.2d

134, 138 (Iowa 2007) (holding authority of department to make final

decision on all “certificate of need” applications coupled with rulemaking

authority demonstrated that the authority was clearly vested with the

department to interpret an exception to the certificate of need

requirements); Iowa Ag Constr. Co. v. Iowa State Bd. of Tax Review, 723

N.W.2d 167, 173–74 (Iowa 2006) (concluding that the board’s rulemaking

authority also gave it the authority to determine whether certain

equipment was “directly and primarily used in livestock production”);
                                          9

Thoms v. Iowa Pub. Employees’ Ret. Sys., 715 N.W.2d 7, 11 (Iowa 2006)

(holding rulemaking authority gave IPERS the authority to interpret a

statutory provision providing for calculation of retirement benefits). 2

       However, we have not concluded that a grant of mere rulemaking

authority gives an agency the authority to interpret all statutory

language. We have determined that the department of revenue has not

been vested with the special authority to interpret the term “competent

evidence” as it is used in chapter 622, the evidence code. Lange v. Iowa

Dep’t of Revenue, 710 N.W.2d 242, 247 (Iowa 2006). We likewise noted

that while the Iowa Finance Authority had been given “ ‘all of the general

powers needed to carry out its purposes and duties, and exercise its

specific powers’ ” as well as the authority to adopt rules “ ‘necessary for

the implementation of the title guaranty program,’ ” the agency did not

have the authority to interpret the terms “hardship” and “public interest”


       2However,  despite the abundance of authority concluding an agency with the
authority to enforce a specific statute and with rulemaking authority has been clearly
vested with the authority to interpret specialized terms and provisions within the
subject matter statute, we reached the opposite result in Mycogen Seeds v. Sands, 686
N.W.2d 457 (Iowa 2004), and P.D.S.I. v. Peterson, 685 N.W.2d 627 (Iowa 2004),
regarding the authority of the workers’ compensation commissioner to interpret various
workers’ compensation provisions. In those cases, this court concluded that
       [w]e see nothing in the workers’ compensation statutes that convinces us
       that the legislature has delegated any special powers to the agency
       regarding its interpretation of . . . statutes.        So the agency’s
       interpretation has not “clearly been vested by a provision of law in the
       discretion of the agency.”
P.D.S.I., 685 N.W.2d at 633 (quoting Iowa Code § 17A.19(10)(c) (2001)); see also
Mycogen Seeds, 686 N.W.2d at 464 (“We see nothing in Iowa Code chapter 85 that
convinces us that the legislature has delegated any special powers to the agency
regarding statutory interpretation in these areas.”). Although not acknowledged in
either opinion, the workers’ compensation commissioner is required to “[a]dopt and
enforce rules necessary to implement” chapters 85, 85A, 85B, 86, and 87. Iowa Code
§ 86.8(1). The commissioner is also charged with the responsibility of presiding over
contested cases brought under chapters 85, 85A, 85B, and 86 and has the authority to
order payments once the parties agree on liability or the commissioner makes a
determination of liability. Id. §§ 86.17(1), 85.21.
                                           10

found in section 16.91(5). Iowa Land Title Ass’n v. Iowa Fin. Auth., 771

N.W.2d 399, 402 (Iowa 2009) (quoting Iowa Code §§ 16.5, 16.91(8)

(2007)).     Similarly,     “[a]lthough     the   legislature   gave    the    labor

commissioner the authority to promulgate Iowa’s occupational safety and

health standards under section 88.5, the legislature did not vest the

interpretation    of   ‘willful’   under    the   penalty   provision   with    the

commissioner or the Board.”           Insituform Techs., Inc. v. Employment

Appeal Bd., 728 N.W.2d 781, 800 (Iowa 2007); see also State v. Pub.

Employment Relations Bd., 744 N.W.2d 357, 360 (Iowa 2008) (concluding

the board was not vested with the authority to interpret a provision

which would determine if the board had the authority to remedy

nonwillful, as well as willful, violations of chapter 20). And, in Doe v.

Iowa Board of Medical Examiners, 733 N.W.2d 705 (Iowa 2007), we

concluded that we owed no deference to the board’s interpretation of

“confidential.”

      Whether information is confidential is not informed by the
      expertise of the board, but rather focuses on the interests of
      the parties. The legislature did not give the board the
      discretion to determine what information is, and is not,
      confidential.
733 N.W.2d at 708.

      Our review of authorities on this subject has confirmed our belief

that each case requires a careful look at the specific language the agency

has interpreted as well as the specific duties and authority given to the

agency with respect to enforcing particular statutes.             It is generally

inappropriate, in the absence of any explicit guidance from the

legislature, to determine whether an agency has the authority to

interpret an entire statutory scheme. As we have seen, it is possible that

an agency has the authority to interpret some portions of or certain
                                     11

specialized language in a statute, but does not have the authority to

interpret other statutory provisions. Accordingly, broad articulations of

an agency’s authority, or lack of authority, should be avoided in the

absence of an express grant of broad interpretive authority.

      We also think certain guidelines have become evident that may

inform our analysis of whether the legislature has clearly vested

interpretative authority with an agency. We note that when the statutory

provision being interpreted is a substantive term within the special

expertise of the agency, we have concluded that the agency has been

vested with the authority to interpret the provisions.         See City of

Coralville, 750 N.W.2d at 527 (provisions relating to the regulation of

public utility rates and services); Thoms, 715 N.W.2d at 11–12

(provisions relating to the calculation of retirement benefits); ABC

Disposal, 681 N.W.2d at 602 (sanitary disposal project).        When the

provisions to be interpreted are found in a statute other than the statute

the agency has been tasked with enforcing, we have generally concluded

interpretive power was not vested in the agency. See, e.g., Lange, 710

N.W.2d at 247 (department of revenue’s interpretation of generally

applicable statutory rule of evidence); Mosher, 671 N.W.2d at 509

(department of inspections and appeals’ interpretation of dependant

adult abuse provisions).       When a term has an independent legal

definition that is not uniquely within the subject matter expertise of the

agency, we generally conclude the agency has not been vested with

interpretative authority. See Iowa Land Title Ass’n, 771 N.W.2d at 401–

02 (“hardship” and “public interest”); Pub. Employees Relations Bd., 744

N.W.2d at 359–60 (“willful” and “non-willful”); Doe, 733 N.W.2d at 708

(“confidential”); Insituform, 728 N.W.2d at 800 (“willful”).
                                        12

        Turning to the case at hand, we first note that the Act does not

explicitly grant the agency the authority to interpret the terms

“employee” and “dwelling.” We must then determine, after reviewing “the

precise language of the statute, its context, the purpose of the statute,

and the practical considerations involved,” if we are firmly convinced that

“the legislature actually intended (or would have intended had it thought

about the question) to delegate to the agency interpretive power with the

binding force of law over the elaboration” of the terms. Bonfield at 63.

        We are not convinced the legislature intended to vest the ICRC

with authority to interpret the terms at issue here.             Both terms have

specialized legal meaning and are widely used in areas of law other than

the civil rights arena.       The fact that the parties rely on definitions of

these terms from various other substantive areas of law indicates the

interpretation of these terms is not within the special expertise of the

ICRC.     The commission itself, when defining the terms and rejecting

Renda’s claims, relied on definitions of the terms gleaned from other

areas of law, including Iowa workers’ compensation statutes, Iowa

unemployment      compensation        statutes,    statutes   pertaining    to   the

department of corrections, the Federal Fair Housing Act, Federal Cable

Communications         Act,   and   Colorado      penal   statutes.    Given     the

commission’s need to examine such far-ranging legal sources to interpret

these terms, we are not convinced that “employee” and “dwelling” are

specialized terms within the expertise of the agency. Rather, these terms

have specialized legal definitions that extend beyond the civil rights

context    and   are    more     appropriately     interpreted   by   the   courts.

Accordingly, we do not give deference to the agency’s interpretation and
                                           13

will substitute our judgment for that of the commission if we conclude

the ICRC made an error of law. Iowa Code § 17A.19(10)(c). 3

       III. Discussion.

       The ICRC concluded it did not have jurisdiction over Renda’s

complaint because it did “not allege a ‘discriminatory practice’ as defined

by Iowa Code Chapter 216.” Specifically the commission determined that

a prison is not a “dwelling” and an inmate is not an “employee” for

purposes of the Act. Renda claims both of these conclusions constitute

errors of law, and we will review each in turn.

       A.     Is a Prison a “Dwelling”? The Act prohibits discrimination

on the basis of a person’s sex with respect to housing.                     Iowa Code

§§ 216.8, 216.8A.         The terms “real property,” “housing,” “housing

accommodation,” and “dwelling” are used in the various statutory

provisions to describe the type of facilities to which the prohibition

applies. Id. These terms, however, are not defined in the statute. When

       3We    think it appropriate to note at this juncture the maxim occasionally
expressed in this court’s prior decisions that we give deference to an agency’s statutory
interpretation “in areas of the agency’s expertise.” See Panda Eng’g & Land Surveying
Examining Bd., 621 N.W.2d 196, 198 (Iowa 2001) (citing a 1995 case for the proposition
that “we will give careful consideration to an agency’s determination of a question of law
in areas of the agency’s expertise.”). This maxim was derived from our understanding of
the Iowa Administrative Procedure Act prevailing prior to the 1998 amendments. We
conclude the 1998 amendments were calculated in relevant part to clarify the
circumstances in which deference is owed by courts to agency decisions. See Bonfield
at 59–60 (noting that the amendments to the scope of review provisions “may mildly
increase the intensity of judicial review of agency action” by “providing much greater
specificity” and “stating explicitly the exact circumstances in which the [court] is or is
not required to give deference to an agency’s view of a matter”). The 1998 amendments
more clearly circumscribe the circumstances in which deference is owed by courts,
substituting the specific inquiry whether a matter has been clearly vested in the agency
in place of the more nebulous inquiry of whether the matter is within the agency’s
expertise. See Locate.Plus.Com, Inc. v. Iowa Dep’t of Transp., 650 N.W.2d 609, 613
(Iowa 2002); Iowa Code § 17A.19(10). Our analysis of the extent to which this court
owes deference to the ICRC’s definition of “employee” cannot be driven by the former
standard of whether the agency has expertise in deciding who should be treated as an
employee within the penal system. Locate.Plus.Com., 650 N.W.2d at 613. The limits of
our deference to the agency’s definition must instead, consistent with the 1998
amendments, be determined by whether the legislature has clearly vested such
authority in the ICRC. Id. As we conclude a clear vesting of such authority has not
occurred, we do not give deference to the ICRC’s definition of “employee.”
                                     14

interpreting statutory provisions, we utilize our well-established rules of

statutory construction.     We “ ‘avoid strained, impractical or absurd

results.’ ”   Sommers, 337 N.W.2d at 472 (quoting Franklin Mfg. Co. v.

Iowa Civil Rights Comm’n, 270 N.W.2d 829, 831–32 (Iowa 1978)).

Usually, we will give an ordinary meaning to the language, “ ‘but the

manifest intent of the legislature will prevail over the literal import of the

words used.’ ” Id. at 472–73. If the language is clear and plain, we will

not utilize construction.    Id. at 473.   We “ ‘look to the object to be

accomplished and the evils and mischiefs sought to be remedied in

reaching a reasonable or liberal construction which will best effect its

purpose rather than one which will defeat it.’ ”       Id.   All parts of the

statute will be considered together, and we will not give undue

importance to any single portion. Id.

      The ICRC determined that a prison is not a dwelling by relying on a

decision from a federal district court case which determined that a jail

was not a dwelling for purposes of the Fair Housing Act.                While

interpretations of the Fair Housing Act are instructive when interpreting

the housing provisions of the Iowa Civil Rights Act, they are not

controlling. State v. Keding, 553 N.W.2d 305, 307 (Iowa 1996).

      Renda directs us to various federal cases which interpret what

constitutes a dwelling for purposes of the Fair Housing Act. She argues

the term “dwelling” has been interpreted broadly to include a wide range

of nontypical residences.       The types of facilities that have been

determined to constitute dwellings for purposes of the Fair Housing Act

range from substance abuse treatment facilities to nursing homes,

homeless shelters, hospices, and residential schools. See, e.g., Lakeside

Resort Enters. v. Bd. of Supervisors, 455 F.3d 154, 160 (3d Cir. 2006)

(substance abuse treatment facility); Hovsons, Inc. v. Twp. of Brick, 89
                                    15

F.3d 1096, 1102 (3d Cir. 1996) (nursing home for disabled elderly

people); Turning Point, Inc. v. City of Caldwell, 74 F.3d 941, 945 (9th Cir.

1996) (homeless shelter); United States v. Columbus Country Club, 915

F.2d 877, 881 (3d Cir. 1990) (summer bungalows run by a country club);

Lauer Farms, Inc. v. Waushara County Bd. of Adjustment, 986 F. Supp.

544, 559 (E.D. Wis. 1997) (migrant workers’ trailers); La. Acorn Fair

Hous. v. Quarter House, 952 F. Supp. 352, 359–60 (E.D. La. 1997) (units

in a time-share resort); United States v. Mass. Indus. Fin. Agency, 910

F. Supp. 21, 26 n.2 (D. Mass. 1996) (residential school for emotionally

disturbed adolescents); Baxter v. City of Belleville, 720 F. Supp. 720, 731

(S.D. Ill. 1989) (AIDS hospice).

      Renda argues the key to determining whether a facility is a

dwelling under the Act is whether the person intends to remain at the

facility for more than a brief period of time and whether the person

considers the facility a residence to which he or she will return.      She

argues her residence at the prison is analogous to other residential

facilities in that she considers her cell her residence, she returns to it

each night, and her stay at the prison is for more than a brief period of

time. She claims that facilities that have been found not to constitute

dwellings under the Fair Housing Act, such as motels and bed and

breakfasts, are distinguishable from the prison on these same grounds.

See Schneider v. County of Will, 190 F. Supp. 2d 1082, 1087 (N.D. Ill.

2002); Patel v. Holley House Motels, 483 F. Supp. 374, 381 (S.D. Ala.

1979). A person does not usually intend to stay at a motel or bed and

breakfast for an extended period, and a person does not generally

consider a motel a residence or home.

      Although an inmate such as Renda may consider her cell, and the

prison as a whole, her indefinite residence and expect to remain in the
                                      16

prison for an extended length of time, we do not believe those

considerations are determinative of whether a prison is a dwelling for

purposes of the Act. We agree with the conclusion reached by the court

in Garcia v. Condarco, 114 F. Supp. 2d 1158, 1161 (D. N.M. 2000):

“[T]here is fundamentally a distinction between a home on the one hand,

and a detention facility on the other.” Some facilities are designed and

intended to be residential, but a prison “is designed and intended to be a

penal facility.” Garcia, 114 F. Supp. 2d at 1161. Our determination of

this issue is strongly influenced by the fact that Renda has no choice in

her placement at the Mt. Pleasant Correctional Facility, and freedom of

choice is crucial to the purposes of the Iowa Civil Rights Act and the Fair

Housing Act.    Each of these Acts was intended to promote freedom of

choice in housing and prohibit discrimination.      Id. at 1162; see also

Keding, 553 N.W.2d at 307 (noting that the housing provisions of the

Iowa Civil Rights Act were patterned on the Fair Housing Act).         “The

element of freedom of choice is . . . paramount” and the primary purpose

of the Act “has no application in the prison context.”           Garcia, 114

F. Supp. 2d    at   1162.   Accordingly,   the   purposes   of   eliminating

discrimination in housing and promoting freedom of choice in housing

are not furthered by applying the Act to inmates in a prison context, and

we conclude that the ICRC correctly determined that a prison is not a

“dwelling” for purposes of the Act.

      B.      May an Inmate Be an “Employee”?           The Act prohibits

discrimination on the basis of sex in employment. Iowa Code § 216.6.

An employee is defined broadly as “any person employed by an

employer.” Id. § 216.2(6). Employer is defined as “the state of Iowa or

any political subdivision, board, commission, department, institution, or

school district thereof, and every other person employing employees
                                       17

within the state.”   Id. § 216.2(7).   Several categories of employers and

employees are exempted from the discrimination prohibitions, including

employers of fewer than four employees, employees who work within the

employer’s home, employees hired to perform personal services for the

employer’s family members, and bona fide religious institutions in

certain situations. Id. § 216.6(6)(a)–(d). No explicit exception exists for

inmates of correctional facilities—in fact, inmates are not mentioned at

all in the statute.     Given the sheer breadth of the definitions of

“employee” and “employer” and the fact that the few exclusions that are

identified are extremely narrow, we are inclined to start from the premise

that inmates may be considered employees unless some compelling

reason exists to convince us that the legislature meant to exclude them

despite utilizing such expansive language.

      The ICRC, relying on a 1990 opinion of the Attorney General,

concluded that
      [a]n inmate is not an “employee” within the meaning of the
      Iowa Civil Rights Act if employed by the State or subdivision
      of the State but may be an “employee” within the meaning of
      the statute if employed through the work release or prison
      industry programs by employers who are otherwise subject
      to the Iowa Civil Rights Act.
      The ICRC and the Attorney General’s opinion noted that in other

worker-related contexts inmates are treated differently and concluded

that they should also be treated differently in the civil rights context. See

1990 Iowa Op. Att’y Gen. 93 (Opinion No. 90–10–3); Iowa Code § 85.59

(explicitly addressing modified workers’ compensation coverage for

inmates); Iowa Code § 96.19(18)(g)(10) (providing explicit exception to

unemployment compensation coverage for inmates of correctional

institutions). The ICRC contends that these explicit exceptions to other

worker-related programs demonstrate that inmates are considered
                                          18

differently from other groups.            We, however, believe these explicit

exceptions for inmates demonstrate the legislature is well aware that

many inmates work within correctional settings and that certain worker-

related provisions may apply to them unless they are expressly excluded

or exempted.      The fact that the legislature did not provide an explicit

exception for inmates within the Act leads us to believe that the

legislature did not intend one.

       The ICRC also points to certain provisions of chapter 904 which

indicate an employee-employer relationship is not created when an

inmate performs work for the prison. Section 904.701 provides inmates

shall be required to perform hard labor while incarcerated. Iowa Code

§ 904.701(1).     When practicable, the director may pay the inmate “an

allowance” deemed “proper in view of the circumstances, and in view of

the cost attending the maintenance of the inmate. The allowance is a

gratuitous payment and is not a wage arising out of an employment

relationship.”    Id.   §   904.701(2). 4       Section    904.901     requires     the

department of corrections to establish a work release program in which

inmates may be granted the privilege of leaving the correctional facility

and working at gainful employment. Id. § 904.901. When working in
such a program,
             [a]n inmate employed in the community under this
       chapter is not an agent, employee, or involuntary servant of
       the department of corrections, the board of parole, or the
       judicial district department of correctional services while
       released from confinement under the terms of a work release
       plan. If an inmate suffers an injury arising out of or in the
       course of the inmate’s employment under this chapter, the
       inmate’s recovery shall be from the insurance carrier of the
       employer of the project and no proceedings for compensation

       4This provision might be relevant to a determination of whether inmates may be
considered employees entitled to fair wages under Iowa minimum wage laws or the
Federal Fair Labor Standards Act. However, because Renda’s claim alleges employment
discrimination in violation of the Civil Rights Act, not unfair pay, we do not find this
provision applicable to our analysis.
                                           19
       shall be maintained against the insurance carrier of the state
       institution, the state, the insurance carrier of the judicial
       district department of correctional services or the judicial
       district department of correctional services, and there is no
       employer-employee relationship between the inmate and the
       state institution, the board of parole, or the judicial district
       department of correctional services.
Id. § 904.906.

       The ICRC contends these provisions demonstrate the legislature’s

intent to exclude inmates from the definition of “employee.” We disagree

because we do not believe the cited provisions in chapter 904 are

determinative of the issue. We think the focus of section 904.701(2) is

pay-related, intended to clarify the discretionary nature of the payment—

that it need only be made at the director’s discretion when “practicable”

and should take into account the cost of the maintenance of the inmate.

Id. § 904.701(2). In other words, an inmate working at hard labor is not

entitled to earn “a fair and reasonable wage” as that concept might be

defined outside the prison context. 5 The provisions explaining that an

inmate employed in the community through the work release program is

not an employee of the state is not inconsistent with a conclusion that an

inmate employed by the prison inside the prison is an employee for

purposes of the Act.          Section 904.906 simply says that an inmate

working outside the prison is an employee of that outside employer,

particularly for workers’ compensation purposes. It has no bearing on

whether Renda may have been an employee of the prison.

       Both parties cite various federal decisions interpreting Title VII,

including several cases involving inmates at federal correctional facilities.


       5Compare    the provisions regarding payment for hard labor with the provisions
addressing payment to inmates participating in the work release program. The inmate
employed in the community pursuant to the work release program shall be paid a fair
and reasonable wage for his work. Iowa Code § 904.905. After certain deductions are
taken from the wages (for obligations such as child support, restitution, the cost of food
and lodging), the balance of the wages will be held for the inmate until his release. Id.
                                   20

Because the Act was modeled after Title VII, we find these decisions

instructive, but not controlling. Annear v. State, 419 N.W.2d 377, 379

(Iowa 1988).   The ICRC directs our attention to several federal cases

concluding that an inmate is not considered an employee for Title VII

purposes.   See Williams v. Meese, 926 F.2d 994, 997 (10th Cir. 1991)

(concluding an inmate is not an employee because his relationship with

the Bureau of Prisons arises out of his status as an inmate and the

primary purpose of their association is incarceration, not employment);

McCaslin v. Cornhusker State Indus., 952 F. Supp. 652, 657 (D. Neb.

1996) (concluding that an inmate is not an employee because the

“prisoner does not enter into a bargain with the prison to become a

prisoner in order to be able to work in prison industries, as might a

private individual who contracts with an employer”).

      However, the court in Baker v. McNeil Island Corrections Center,

859 F.2d 124, 128 (9th Cir. 1988), reached the opposite conclusion and

determined the fact that the prison has so much control over its inmates

actually weighs in favor of considering inmates employees for Title VII

purposes. In that case, an inmate alleged he applied for and was denied

a job in the prison library because the head librarian did not want “to

work with a black man.” Baker, 859 F.2d at 127. The court concluded

Baker’s claim should not have been dismissed on a motion to dismiss

because “the court could not be convinced beyond doubt that no set of

facts could be proven to entitle Baker to relief.” Id. at 128. While the

court did not reach the issue of whether Baker was an employee, it

remanded the case for further proceedings because it was possible that

an employment relationship could be established on remand. Id. at 129.

Other courts have followed the reasoning of Baker, concluding the

determination of whether an inmate is an employee must be made on a
                                    21

case-by-case basis rather than with a per se rule. See Moyo v. Gomez, 32

F.3d 1382, 1385 (9th Cir. 1994) (relying on Baker to conclude that

inmates may be considered employees if their work can be distinguished

from the obligatory on-site prison labor); Walker v. City of Elba, 874

F. Supp. 361, 365–66 (M.D. Ala. 1994) (relying on Baker to conclude that

a work-release inmate was entitled to Title VII protections).

      The Act was adopted “to eliminate unfair and discriminatory

practices in . . . employment.” 1965 Iowa Acts ch. 121 (title of act). It

was designed to “correct a broad pattern of behavior rather than merely

affording a procedure to settle a specific dispute.” Estabrook v. Iowa Civil

Rights Comm’n, 283 N.W.2d 306, 308 (Iowa 1979). When we consider

the purposes of the Act and whether they might be achieved when

applied to inmates working within a prison, we reach the same

conclusion as the Seventh Circuit Court of Appeals did when explaining

why Title VII might apply in the prison context, even if the Fair Labor

Standards Act did not.
      Prison is in many ways a society separate from the outside
      world.     Discrimination, however, maintains the same
      invidious character within the world of the prison and
      outside of it. Given the broad policies behind Title VII, there
      would appear to be no reason to withhold Title VII’s
      protections from extending inside the prison walls.

Vanskike v. Peters, 974 F.2d 806, 810 n.5 (7th Cir. 1992). Accordingly,

given the broad definition of “employee” utilized in the Act, and the lack

of an explicit exception for inmates from the classification of “employee,”

along with the evils of employment discrimination the Act seeks to

remedy, we conclude the legislature did not intend to exclude inmates

from protection against discrimination in employment within the prison.

      Our conclusion does not mean that all work performed by an

inmate will constitute employment.       We agree with the Baker court’s
                                          22

implicit holding that the determination of whether an inmate is an

employee will need to be reached on a case-by-case basis, with a

consideration of various factors, including the voluntariness of the

position, whether the inmate went through an application process, and

the nature and extent of similarities between the circumstances of the

inmate’s job in the prison and jobs outside the penal context.

       To assist in determining the similarities between jobs inside and

outside the prison, we think it may also be useful to consider how other

courts    have     distinguished      between      employees      and    independent

contractors for purposes of Title VII. The Eighth Circuit Court of Appeals

has explained that when confronted with the issue, “nearly every

appellate court has applied a test described as a hybrid of the common-

law test and economic realities test.” 6 Wilde v. County of Kandiyohi, 15

F.3d 103, 105 (8th Cir. 1994).               “Under the hybrid test, the term

‘employee’ is construed in light of general common-law concepts, taking

into account the economic realities of the situation.” Id. The hybrid test

has been described as an
       application of general principles of the law of agency to
       undisputed or established facts. Consideration of all the
       circumstances surrounding the work relationship is
       essential, and no one factor is determinative. Nevertheless,
       the extent of the employer’s right to control the “means and
       manner” of the worker’s performance is the most important
       factor to review here, as it is at common law . . . . If an
       employer has the right to control and direct the work of an
       individual, not only as to the result to be achieved, but also
       as to the details by which that result is achieved, an
       employer/employee relationship is likely to exist.




       6The   common-law test was first set forth in Community for Creative Non-Violence
v. Reid, 490 U.S. 730, 109 S. Ct. 2166, 104 L. Ed. 2d 811 (1989), and the economic
realities test was developed in a Fair Labor Standards Act case, Goldberg v. Whitaker
House Coop., Inc., 366 U.S. 28, 81 S. Ct. 933, 6 L. Ed. 2d 100 (1961). See Moland v. Bil-
Mar Foods, 994 F. Supp. 1061, 1068 (N.D. Iowa 1998).
                                         23

Spirides v. Reinhardt, 613 F.2d 826, 831–32 (D.C. Cir. 1979) (footnotes

omitted).

       Additional factors relevant for consideration include
       (1) The kind of occupation, with reference to whether the
       work usually is done under the direction of a supervisor or is
       done by a specialist without supervision; (2) the skill
       required in the particular occupation; (3) whether the
       “employer” or the individual in question furnishes the
       equipment used and the place of work; (4) the length of time
       during which the individual has worked; (5) the method of
       payment, whether by time or by job; (6) the manner in which
       the work relationship is terminated, i.e., by one or both
       parties, with or without notice and explanation; (7) whether
       annual leave is afforded; (8) whether the work is an integral
       part of the business of the “employer”; (9) whether the
       worker accumulates retirement benefits; (10) whether the
       “employer” pays social security taxes; and (11) the intention
       of the parties.
Id. at 832.

       Although Renda has not asserted a workers’ compensation claim in

this case, this court has addressed the standard for determining whether

a worker is employed for purposes of chapter 85 of the Iowa Code. 7 We

have concluded the major factors considered in determining whether an

employer-employee relationship exists in the workers’ compensation

context are whether the party alleged to be the employer (1) is the
“responsible authority in charge of the work or for whose benefit the

work is performed,” (2) has the right to select, “or to employ at will,” (3)

has a responsibility for payment of wages, (4) has “the right to discharge

or terminate the relationship,” and (5) has “the right to control the work.”

Sister Mary Benedict v. St. Mary’s Corp., 255 Iowa 847, 851–52, 124


       7As Renda has not made a claim based on Iowa Code chapter 85, we do not
address the provisions of Iowa Code section 85.59 detailing the circumstances in which
inmates may receive workers’ compensation benefits. We cite our decisions detailing
the standard for determining whether an employer-employee relationship exists in the
workers’ compensation context not because that standard is controlling in this case,
but to emphasize its similarity with the standard applied in the Title VII cases cited
above.
                                         24

N.W.2d 548, 551 (1963); see also Henderson v. Jennie Edmundson Hosp.,

178 N.W.2d 429, 431 (Iowa 1970).

       Although a few of the factors considered in determining whether an

employer-employee relationship exists in the Title VII and workers’

compensation contexts may not be applicable in the prison setting, we

think most of them are useful and relevant in assessing the similarities

between jobs inside and outside the prison, and in determining whether

an inmate claiming a violation of chapter 216 is an employee protected

under the Act.

       Although Renda asserts on appeal that the circumstances of her

prison job bring her comfortably within the definition of “employee,”

because the ICRC refused to entertain jurisdiction over her claim, the

record does not contain evidence sufficient to allow us to address the

issue on appeal. 8       Accordingly, we conclude that inmates may be

employees for purposes of the Act and the ICRC committed legal error in

concluding it had no jurisdiction over Renda’s complaint.

       IV. Conclusion.

       We affirm the determination of the district court that the ICRC did

not err in determining that the housing provisions of the Act do not apply
to inmates housed in a correctional facility. We conclude the ICRC erred

in deciding as a matter of law that an inmate could not be considered an

employee for purposes of the Act. We therefore affirm in part and reverse




       8Renda’s  complaint merely states that she “started working as a R&D (Receiving
& Discharge) Clerk” and does not provide any background on her application process or
whether she was required to work in that position. Later, after she was terminated
from the R&D position, she states she “was denied a job at the Recreation Department
because of the [property sheet forging] incident.” This allegation implies she may have
gone through an application process for the second job, but we still believe the record
must be developed.
                                   25

in part the district court’s judgment and remand to the district court for

remand to the ICRC for further proceedings consistent with this opinion.

      AFFIRMED       IN   PART,   REVERSED     IN   PART,    AND    CASE

REMANDED.

      All justices concur except Cady, J., who dissents, and Appel, J.,

who takes no part.
                                    26
                         #44/08–0428, Renda v. Iowa Civil Rights Comm’n
CADY, Justice (dissenting).

      I respectfully dissent from that portion of the holding of the

majority declaring a prison inmate is an employee of the State of Iowa

entitled to seek relief under the Iowa Civil Rights Act from discriminatory

practices while performing a regularly assigned prison job when various

factors used to distinguish employees from independent contractors

militates in favor of a finding that the inmate is an employee.        This

holding is contrary to the position of the Iowa Civil Rights Commission,

as well as the interpretation of related federal laws by the Equal

Employment Opportunity Commission, the Department of Labor, and

nearly every court in the nation that has addressed the application of the

Fair Labor Standards Act to prisoners who work in state prison

industries. See McCaslin v. Cornhusker State Indus., 952 F. Supp. 652,

656–58 (D. Neb. 1996) (noting that a majority of jurisdictions, along with

the EEOC and Department of Labor, do not consider prisoners

employees).    Moreover, the majority’s holding is unfaithful to the

principles of statutory interpretation we are obligated to apply when we

declare the statutory intent of our legislature. See Teamsters Local Union

No. 421 v. City of Dubuque, 706 N.W.2d 709, 713 (Iowa 2005)

(recognizing we apply the rules of statutory construction to attain our

goal of interpreting statutes according to the intent of the legislature). I

would affirm the decision of the district court and conclude the

legislature did not intend for prison inmates who, like Renda, perform

regular prison labor to be included within the provisions of Iowa’s civil

rights act relating to unfair or discriminatory practices in the workplace.

      At the outset, I acknowledge discrimination exists in prisons as it

still does in society in general.   Moreover, a prison setting in no way
                                    27

excuses the presence of discrimination. Yet, the question is not whether

the overarching policies behind the enactment of Iowa’s civil rights act

pertaining to employment discrimination apply to prisons, but whether

the legislature intended for the provisions to apply to prisoners engaged

in regularly assigned labor. The majority has failed to properly analyze

this question and, accordingly, has answered it incorrectly.

      The majority first rejects the Iowa Civil Rights Commission’s

interpretation by finding the legislature did not give the commission the

power to interpret the meaning of an “employee” under the act. Yet, this

conclusion simply aligns the standard of judicial review on appeal. The

majority may not be required to give the commission’s interpretation

deference, but courts may nevertheless utilize all agency interpretations

as a helpful tool in conducting independent analysis. See PanDa Eng’g v.

Eng’g & Land Surveying Examining Bd., 621 N.W.2d 196, 198 (Iowa

2001) (recognizing we give weight to an agency’s statutory interpretation

“in areas of the agency’s expertise”).       The majority proceeded to

substitute its judgment for that of the commission without pausing to

give any thought to the commission’s interpretation.

      More importantly, the majority builds its decision on two false

premises that have no foundation in law or logic. These false premises

are responsible for the majority’s faulty conclusion. The majority begins

its analysis with the premise that the word “employee” is a broad term

and, therefore, must include prison inmates unless there is a “compelling

reason” to the contrary. This homespun principle has no support in the

law and is totally contrary to our long-standing rule of statutory

interpretation that, when a statute does not provide a helpful definition

of a disputed term, courts should not imply a meaning that is broader

than the common-law definition. See Nationwide Mut. Ins. Co. v. Darden,
                                    28

503 U.S. 318, 322–23, 112 S. Ct. 1344, 1348, 117 L. Ed. 2d 581, 588–89

(1992) (applying test to the term “employee”); see also Harvey v. Care

Initiatives, Inc., 634 N.W.2d 681, 685 (Iowa 2001) (“[W]e construe

statutory language consistent with our case law and the common law

. . . . Words that have a well-defined meaning in the common law have

the same meaning in statutes dealing with similar subject matter.”

(Citations omitted.)). Furthermore, this approach reveals our legislature

did not intend to include prison inmates as employees under Iowa Code

chapter 216. See Frederick v. Men’s Reformatory, 203 N.W.2d 797, 798

(Iowa 1973) (holding inmates are not “employees” under the workers’

compensation statute).    The majority totally ignores the common-law

context and, from that point, sets course on its misguided path of a

“compelling reason” to exclude.

      The majority next declares, again, without any authority, that the

absence of a statutory exception for prison inmates in chapter 216

signals that the legislature intended to include prison inmates within the

parameters of chapter 216. This premise totally misses the point of our

applicable rules of interpretation and sinks an already distressed

analysis.

      Under our principles of statutory interpretation, an exception to a

statute created by the legislature normally indicates the matter excepted

would have been included in the statute absent the exception.         River

Bend Farms, Inc. v. M & P Mo. River Levee Dist., 324 N.W.2d 460, 462

(Iowa 1982); see also 2A Norman J. Singer & J.D. Shambie Singer,

Statutes and Statutory Construction § 47:11, at 333 (7th ed. 2007)

(stating the general rule that “statutory exceptions exist only to exempt

something which would otherwise be covered”). However, the absence of

an exception for a particular matter in a statute, as in this case, does not
                                       29

present the same inference.        The absence of an exception may simply

signal that the legislature never considered the matter to be covered

under the statute in the first place. For example, in 1973, we held the

workers’ compensation statute applicable to employees in this state did

not include prison inmates working in prison industries, even though

they were not specifically excluded from the statute.        Frederick, 203

N.W.2d at 798.      We found the relationship between the state and its

prisoners were, in fact, “the antithesis of voluntary employment,” and

inmates were not included in the statute because they were not

employees.    Id.   Subsequently, the legislature amended the workers’

compensation statute to provide for limited workers’ compensation

coverage for inmates engaged in special work such as services rendered

under a chapter 28E agreement, services rendered for private industry

maintained in the prison or under section 904.809, and certain other

special work assignments and projects. See generally Iowa Code § 85.59

(2009) (providing benefits for certain specified inmates).       Thus, the

special statutory inclusion of inmates performing certain jobs confirmed

our legislature’s intent not to generally include inmates in the statute.

      Under our accepted rules of interpretation, we must accept that

our legislature does not include inmates in matters relating to

employment without special rules for inclusion.       The approach of the

majority is contrary to the weight of our rules of interpretation and the

clear intent of our legislature.

      Lastly, the majority places a great amount of emphasis on the

Baker case.    Baker v. McNeil Island Corr. Ctr., 859 F.2d 124 (9th Cir.

1988).    The holding is a minority position, and the case can be

distinguished from this case because it dealt with a voluntary work

assignment.
                                      30

      Notwithstanding, the multifactor test ultimately adopted by the

majority is misplaced as a means to decide if inmates performing

mandated labor within the walls of a prison for no wage are employees.

See Iowa Code § 904.701 (indicating all inmates are required to perform

labor and providing rules for paying inmates “gratuitous allowances” for

services rendered to prison). The test focuses primarily on control, which

is the very point of incarceration.    Incarceration provides the ultimate

control. In fact, incarceration provides so much control that an inmate

performing regular work, like Renda, could never become an employee.

See Vanskike v. Peters, 974 F.2d 806, 810 (7th Cir. 1992) (“In those

cases the question is essentially whether there is enough control over the

individual to classify him as an employee.        But here . . . there is

obviously enough control over the prisoner; the problematic point is that

there is too much control to classify the relationship as one of

employment.”).     As we recognized in Frederick, an inmate is the

antithesis of a voluntary employee. 203 N.W.2d at 798.

      The majority has analyzed the issue in this case without following

our rules of interpretation and has reached a conclusion that is clearly

contrary to the intent of our legislature. For that reason, I respectfully

dissent.   Our role of interpreting statutes is too important to take the

approach followed by the majority.
