               IN THE SUPREME COURT OF IOWA
                               No. 15–0574

                           Filed June 23, 2017

                        Amended August 25, 2017


TINA HASKENHOFF,

      Appellee,

vs.

HOMELAND ENERGY SOLUTIONS, LLC,

      Appellant.



      Appeal from the Iowa District Court for Chickasaw County, John J.

Bauercamper, Judge.




      Employer appeals judgment on jury verdict for plaintiff on claims

for sexual harassment and retaliation. DISTRICT COURT JUDGMENT

REVERSED AND CASE REMANDED FOR NEW TRIAL.



      Kevin J. Visser and Lisa A. Stephenson of Simmons Perrine Moyer

Bergman PLC, Cedar Rapids, for appellant.



      Roxanne Barton Conlin of Roxanne Conlin & Associates, P.C.,

Des Moines, and Brooke Timmer and Paige Fiedler of Fiedler & Timmer,

P.L.L.C., Johnston, for appellee.
                                     2

WATERMAN, Justice.

      In this appeal, we must decide whether the district court correctly

denied an employer’s motion for new trial following a $1.4 million jury

verdict for the plaintiff on claims under the Iowa Civil Rights Act (ICRA)

for employment discrimination based on sexual harassment by a direct

supervisor and coemployees.      The employer argues the district court

erred by submitting a direct negligence claim instead of vicarious liability

for supervisor harassment and misinstructed the jury on the elements of

proof, the causation standard for retaliation, the definition of adverse

employment action, and constructive discharge.         The employer also

argues a new trial is required for attorney misconduct, errors in allowing

expert testimony on legal standards, and excessive damages, which

included $1 million for future emotional distress. Finally, the employer

argues the district court erred by awarding excessive attorney fees of

$846,364, the full amount claimed.

      For the reasons explained below, we hold that workers may bring a

direct-liability negligence claim under the ICRA against the employer for

supervisor harassment, but the plaintiff must prove the employer knew

or should have known of the harassment and failed to take prompt and

appropriate remedial action to end it.       We conclude that prejudicial

errors in four jury instructions require a new trial. We find no abuse of

discretion in the admission of the expert testimony. We need not decide

the remaining issues raised in the appeal.

      I. Background Facts and Proceedings.

      The jury could find the following facts based on the record

developed at trial. Homeland Energy Solutions, LLC (HES) operated an

ethanol plant with forty-five employees in Lawler, Iowa. On February 16,

2009, HES hired Tina Haskenhoff as a lab manager at the plant. That
                                        3

day, she was provided with a copy of the HES employee handbook, which

included its policy on sexual harassment.           The policy stated sexual

harassment was prohibited and provided that “[a]n employee who

believes he or she has been subject to harassment prohibited by this

policy should report the incident immediately to their supervisor or a

member of the Management Team.” The policy stated any complaint of

sexual harassment would be investigated and any employee may bring a

complaint “without fear of reprisal.”

      Haskenhoff was repeatedly harassed by her immediate supervisor,

Kevin Howes, HES’s operations manager.               Howes repeatedly made

inappropriate comments in Haskenhoff’s presence. For example, Howes

talked about Haskenhoff’s breasts on at least three occasions, referring

to them as “them puppies” or “the twins.” Howes discussed Haskenhoff’s

body and attire with other employees and speculated out loud about

what it would be like to have sex with her. He insinuated to other male

employees that they could get Tina into bed.              He commented on the

attractiveness   or   unattractiveness      of   female    job   applicants   and

employees. He spoke at work about strippers. On multiple occasions, he

used objects or engaged in body motions in front of Haskenhoff to

simulate sexual behavior.

      Haskenhoff’s coemployees also engaged in inappropriate conduct

in her presence. One displayed a screen saver on his computer of two

young girls touching tongues.           Another photographed Haskenhoff’s

cleavage at a company outing and showed that photo to others.

Haskenhoff received an unwanted pornographic video from yet another

employee.   The atmosphere Haskenhoff experienced at the HES plant

was unseemly and unprofessional.
                                         4

      In November 2010, Haskenhoff told Howes she needed to leave

work early for a mammogram.             She remembered Howes responding,

“[W]ell, you know, if you sat out in the parking lot you could probably

make some money.” She interpreted this to mean, “[I]f I sat in my car

and put a sign up guys would pay to grope me.” Howes’s recollection

differed; he recalled he told Haskenhoff she “could go around the corner

and use the copying machine and save herself some money.” He stated

that he meant Haskenhoff could “[u]se the copying machine, make a

photocopy    [of     her   breast]   versus   going   to   the   doctor.”   Howes

acknowledged that his comment was inappropriate. Haskenhoff reported

the incident to the plant manager, Chad Kuhlers.             Kuhlers forwarded

Haskenhoff’s report to the head of human resources, Sarah Frein. The

next day, Howes came to Haskenhoff’s office and spoke with her.               He

apologized for his comment and expressed concern that Kuhlers wanted

him fired because of it.        Haskenhoff said Howes made her feel “very

intimidated.” Shortly after her interaction with Howes, Walter Wendland,

the chief executive officer (CEO) of HES, asked Haskenhoff to come to his

office. She recalled at this meeting,

      [Wendland] said—he was kind of, like, well, what’s going on
      here, and he said you know Chad [Kuhlers] really wants me
      to fire Kevin over this, and I said I never asked Chad to fire
      him. And then Walt went on to say, well, come [on]. I
      thought we were like a family. You don’t want to do this to
      your family.

On December 7, Frein called Haskenhoff into her office to discuss her

complaint. Jeff Grober, the chief financial officer (CFO), was also present

in Frein’s office.    At that meeting, Frein’s notes indicate that she had

planned “further discussion” about the complaint, but Haskenhoff stated

she did not want the investigation to go further because she did not want

Howes to be fired. Haskenhoff later testified about that meeting:
                                    5
             Q. And what happened in that meeting? A. They
      asked me about it. She said that Chad had notified her of
      something Kevin had said to me that I reported as making
      me uncomfortable, and I said he did. And I think I broke
      down at that point, and I said I don’t want him to get fired
      over this, you know. I said to her I’m sure now that he
      knows, now that it has been pointed out to him, surely he
      will stop. Anybody would stop.
            Q. Is that what you believed would happen? A. Yes.
             Q. Did you tell ’em you wanted it dropped? A. I said
      if it were going to come to the point of Kevin getting fired, I
      didn’t want to go—I didn’t want to officially go further at all
      because I did not want him fired over that.
           Q. Did you want them to do something about it?
      A. Yes.

At Haskenhoff’s request, Frein took no further disciplinary action against

Howes at that time.

      Wendland later removed Kuhlers as plant manager and promoted

Howes to that position. For the next nine months, Haskenhoff made no

complaints to management about Howes.         Her performance review in

January 2011 noted that she met or exceeded requirements in all areas.

However, the review also noted that Haskenhoff had areas to work on

and referenced an email dispute in which Haskenhoff had become

argumentative with a subordinate over lab procedures.         In May, she

began seeking a position at John Deere.

      On August 8, Haskenhoff walked by Howes’s office and overheard

him talking on his cell phone. Haskenhoff recently had told Howes she
intended to marry her long-time boyfriend. Haskenhoff overheard Howes

say, “Yep, she’s getting married.    And for a good reason (pause) for

money.” This comment upset Haskenhoff. She walked into the control

room and told another employee, “Okay. Kevin is a [f&#%!@”g] asshole. I

am leaving. I will be back tomorrow.” Haskenhoff left work at 11:15 that

morning.
                                   6

      Haskenhoff sent an email to Howes expressing her disgust at his

comment. Howes replied that he had not meant to offend her and asked

her to meet the next day in his office to discuss the issue. Later that

night, Howes sent an email to the CEO, Wendland; the CFO, then David

Finke; and the commodities manager, Steve Wubbena.         In the email,

Howes said he wanted to discipline Haskenhoff for calling him expletives

in front of subordinate employees, for leaving the lab a mess, and for

leaving work without permission for the day. He pointed out Haskenhoff

had been the only lab person scheduled, lab samples had not been

completed, they were in the middle of a lab trial, and she “blew off” a

conference call by leaving.     Howes also expressed frustration at

Haskenhoff’s attitude, her frequent smoke breaks, and her failure to

arrange coverage for her shifts on her days off. Finke responded, “We

claim that she does a lot of things poorly, do we have any of this

documented and on file?”

      The next day, Haskenhoff met with Howes and Wubbena in

Howes’s office.   They discussed the conduct from the day before, and

Howes apologized. Howes also used the term “insubordination” to refer

to Haskenhoff’s reaction to his comment.        Haskenhoff replied using

terms such as “sexual harassment” and “hostile work environment” to

refer to Howes’s conduct. She then told Howes about other conduct in

the office, including about a coemployee having an inappropriate screen

saver and inappropriate nicknames being used in the office.       Howes

responded after their meeting by directing the employees to cease using

the nicknames and to remove the screen saver.

      The following week, Frein emailed Haskenhoff asking for “facts,

examples, and concerns [of inappropriate conduct] in writing so we can

get them addressed appropriately.” Haskenhoff responded by email to
                                     7

Frein the same day, listing multiple incidents of inappropriate conduct

and stating the list was long “but not all encompassing.”       Haskenhoff

said the only reason she brought the issues up was that Howes had

threatened to write her up for insubordination.           Frein immediately

forwarded this email to Finke, who responded, “I don’t think we can

discount anything that is mentioned below.              Some of it may be

embellished a bit, but we still cannot just take it with a grain of salt.”

Finke stated that the first step was to look at the employee handbook,

the second step was a plant-wide training for sexual harassment, and

the third step was devising a plan to address the issue with Howes.

      The next day, Howes prepared a written warning for Haskenhoff’s

conduct leaving work early. He also provided Frein with a statement of

what occurred during the August 9 meeting.          Wubbena forwarded a

statement to Frein as well. A day later, Finke emailed Frein recounting

that he told Howes he needed to be “OVERLY” professional in “ALL” of his

work-related endeavors moving forward. Finke’s email also told Frein,

“In the meantime, I want you to be thinking about forming a game plan

for investigation [of] Tina’s claims.”   Frein enlisted the help of outside

counsel, James Gilliam, that day. Frein asked Gilliam questions about

HES’s next steps, including whether Haskenhoff could be disciplined for

leaving work early without permission and for “plotting” against Howes.

      HES    investigated    Haskenhoff’s    complaint     by   interviewing

employees, including Haskenhoff and Howes.              During Haskenhoff’s

interview on August 23, Wendland and Frein were present and reviewed

Haskenhoff’s list of incidents.      As to several incidents, Wendland

commented to Haskenhoff that the conduct did not violate the company’s

policy and crossed them off the list in her presence.
                                    8

      While the investigation was ongoing, Howes began drafting staff-

counseling forms, or write-ups, for what he perceived as Haskenhoff’s

insubordination leaving the plant early on August 8. Howes indicated he

wanted to terminate Haskenhoff and contacted other employees to gather

more evidence of her insubordination. Howes also repeatedly reminded

other employees to keep work professional and informed them of

upcoming    mandatory    harassment     training.    Gilliam   and     Frein

recommended that Haskenhoff not be disciplined for her conduct

because “the timing was inappropriate.” Finke told Howes by email that

he did not feel comfortable terminating Haskenhoff, stating,

      I honestly feel that Walt and I are getting to the bottom of a
      very serious situation and that we are doing it in the proper
      manner. For me, the end goal is to make an informed proper
      conclusion per Homeland’s policies and under the guidance
      of qualified legal counsel.

Nevertheless, Howes drafted two final staff-counseling forms regarding

Haskenhoff, one entitled “#3” and the other “#4.” He emailed these forms

to Wendland and Finke. Form #3 discussed the investigation and listed

the “numerous harassment/inappropriate behavior claims” as one of the

reasons for disciplining Haskenhoff.     Form #4 did not mention the
investigation and focused on Haskenhoff’s conduct on August 8 leaving

work without permission. Howes said he liked #4 because “it does not

come across as being retaliatory in nature.” Both forms recommended

giving Haskenhoff a written warning and ninety-day performance

improvement plan.

      On August 29, Wendland and Finke presented Howes with a

written staff-counseling form, which determined that Howes had “made

unprofessional and unacceptable comments in the workplace.” It stated

that HES expected Howes’s conduct to improve and that if it did not, he
                                           9

would be subject to disciplinary action, including possible discharge.

Two days later, Wendland and Finke met with Haskenhoff to discuss the

results of the investigation.        They assured her that she would not be

retaliated against and directed her to report any perceived retaliation to

Finke or Wendland. Then, while Wendland and Finke were still present,

Howes entered the room and presented Haskenhoff with a draft

performance improvement plan addressing her conduct on August 8.

Haskenhoff disagreed with many allegations in the plan.                      The men

assured her the plan would be redrafted to reflect her concerns.                    The

next day, Haskenhoff reported to HES for work. At around 11 a.m., she

entered Finke’s office and resigned, calling the previous day’s events

“bullshit.” 1 Six weeks later, Haskenhoff began working at John Deere.

       Haskenhoff filed an administrative complaint with the ICRA eight

months later. After receiving an administrative release, Haskenhoff filed

a civil action in Chickasaw County District Court, alleging sexual

harassment and retaliation under the ICRA. The jury trial commenced

on October 1, 2014, and spanned three weeks.

       HES filed multiple motions in limine, several of which were granted

by the district court. An order in limine prohibited Haskenhoff’s counsel
from making any reference to “rape,” “sexual assault,” or similarly

inflammatory terms and expressly prohibited making any analogy

between rape and the harassment complaint.                     Despite that ruling,

Haskenhoff’s counsel, during her examination of HES’s CEO at the jury

trial, asked this question:


       1Haskenhoff   posted on social media two days later to a friend, “[J]ust wanted to
let you know that [I] quit Homeland yesterday without giving any notice, had enough of
Kevin’s bullshit vulgarity and juvenile behavior and favoritism . . . followed your lead
LOL[.]”
                                    10
               Q. I mean, don’t you think it would be analogous, for
        instance, if someone had accused someone of rape and then
        the person they accused of rape was able to walk in and say
        that’s defamation for saying I’m a rapist?
             MR. VISSER: Objection; this is argument,            it’s
        improper, and violates the terms of pretrial orders.
              THE COURT: Sustained as to argumentative.

Another order in limine forbade Haskenhoff’s counsel from offering
testimony about Howes’s character or referring to him as “juvenile,

immature, chauvinistic, vindictive, holding a grudge, or capable of

retaliation,” as such evidence was not probative of truthfulness. Counsel

for Haskenhoff nevertheless asked the following questions in front of the

jury:

              Q. [To Matthew Dutka, employee of HES] And based
        on knowing and observing [Howes], is he the kind of person
        that would be likely to use people to get what he wants?
              ....
              Q. [To Wade Heideman, employee of HES] Based on
        your observations about Kevin, would he be the kind of guy
        who would hold a grudge?
              ....
              Q. [To Sherri Hansen, employee of HES] From your
        time working with Mr. Howes, do you think he would have
        done everything in his power to get rid of Tina?

Counsel for HES objected over 574 times during the trial, according to

Haskenhoff.    The court sustained 353 defense objections, or sixty-one

percent. By contrast, counsel for Haskenhoff objected fifty-nine times,
thirty of which were sustained (fifty-one percent).

        The district court denied HES’s motion in limine to exclude the

testimony of expert witness Dr. Louise Fitzgerald, professor emeritus of

the University of Illinois at Urbana-Champaign, who taught Psychology

and Gender and Women’s Studies. HES argued her testimony included

inadmissible legal conclusions.      Dr. Fitzgerald testified over defense
                                    11

objections about the standard of care in the human resources field for

policies and procedures regarding sexual harassment and HES’s alleged

failure to meet that standard. She also testified about victims’ typical

reactions to sexual harassment and stated Haskenhoff displayed those

reactions.   HES argues the jury instructions were shaped to reflect

Dr. Fitzgerald’s testimony. At the close of evidence, the parties made a

record on jury instructions.

      A. Direct Negligence Versus Vicarious Liability for Supervisor

Harassment. HES requested an instruction on sexual harassment that

applied different standards of liability depending on the harasser’s

position within the company.      For harassment by a coworker, HES’s

proposed instruction stated it would be liable if it “knew or should have

known of the abusive or hostile conduct and failed to take prompt and

corrective action to end the harassment.”         If the harasser was a

supervisor, HES’s proposed instruction did not require the plaintiff to

prove HES knew or should have known of the harassment, but allowed

HES to prove, as an affirmative defense, that it “exercised reasonable

care to prevent and correct promptly any sexually harassing behavior”

and that Haskenhoff “unreasonably failed to take advantage of any

preventative or corrective opportunities provided by Homeland Energy

Solutions or to avoid harm otherwise.” This is commonly known as the

Faragher–Ellerth defense to employer liability.   See Faragher v. City of

Boca Raton, 524 U.S. 775, 807, 118 S. Ct. 2275, 2293 (1998); Burlington

Indus., Inc. v. Ellerth, 524 U.S. 742, 765, 118 S. Ct. 2257, 2270 (1998).

      Haskenhoff argued for a single marshaling instruction on a direct

negligence theory that encompassed harassment by a supervisor or

coworker.    The district court agreed and gave an instruction nearly
                                     12

identical to Haskenhoff’s proposed instruction. The court’s marshaling

instruction stated,

                           INSTRUCTION NO. 14
                      COUNT I – SEXUAL HARASSMENT CLAIM
             In order to recover damages on her claim of sexual
      harassment, the plaintiff, Tina Haskenhoff, must prove all of
      the following elements of her claim:
            1. The plaintiff, Tina Haskenhoff, was subjected to
      offensive conduct by employees, agents, or officers of
      Homeland Energy Solutions, L.L.C. while employed at its
      ethanol plant.
            2. Such conduct was unwelcome.
           3. Tina Haskenhoff’s sex played a part in such
      conduct.
           4. This conduct was sufficiently severe or pervasive
      that a reasonable person in Tina Haskenhoff’s position
      would find her work environment was hostile or offensive.
            5. At the time this conduct occurred and as a result of
      this conduct, Tina Haskenhoff believed that the work
      environment was hostile or abusive.
           6. Homeland Energy Solutions, L.L.C., knew or should
      have known of the occurrence of one or more sexually
      harassing incidents.
            7. Homeland    Energy  Solutions, L.L.C.  acted
      negligently in creating or continuing a hostile work
      environment.
             If you find that the plaintiff, Tina Haskenhoff, has
      failed to prove any of these propositions, the plaintiff is not
      entitled to damages on her claim of sexual harassment. If
      the plaintiff has proved all of these propositions, the plaintiff
      is entitled to damages in some amount.

      HES objected to this marshaling instruction, citing Farmland

Foods, Inc. v. Dubuque Human Rights Commission, on liability for sexual

harassment and the applicability of the Faragher–Ellerth defense. 672

N.W.2d 733, 744 (Iowa 2003).       HES also objected that the negligence

standard had been incorrectly defined, stating, “Again, to the extent that

there is co-worker harassment, the standard—the element is knew or
                                    13

should have known and failed to take appropriate and prompt remedial

action”—an element of proof was missing from the court’s instruction.

      B. Retaliation Instruction—Causation.         HES objected to the

court’s marshaling instruction on Count II, retaliation. HES requested

an instruction that required Haskenhoff to prove the protected activity

was a “significant factor” motivating the adverse employment action. In

contrast, Haskenhoff’s proposed instruction, which the district court in

large part adopted, provided that the protected activity need only have

“played a part” in defendant’s decision to take the adverse action. The

court’s marshaling instruction stated,

                             INSTRUCTION NO. 26
                       COUNT II – RETALIATION CLAIM
            In order to recover damages on her claim of retaliation,
      the plaintiff, Tina Haskenhoff, must prove all of the following
      elements of her claim:
             1. The plaintiff, Tina Haskenhoff, engaged in protected
      activity by complaining about sexual harassment.
            2. The defendant, Homeland Energy Solutions, L.L.C.,
      took adverse action against Tina Haskenhoff.
           3. The protected activity played a part in Homeland
      Energy Solutions, L.L.C’s decision to take the adverse action.

Instruction No. 28 elaborated,

                          INSTRUCTION NO. 28
                          FACTOR – DEFINED
             The plaintiff’s harassment complaints played a part in
      her treatment if those complaints were a factor in the
      defendant’s employment actions toward her. However, her
      harassment complaints need not have been the only reason
      for the defendant’s actions.

HES objected to these instructions, stating that the elements of a

retaliation claim, as set forth in our decisions, “all provide that . . .

causal connection is satisfied by a showing that the protected activity

was a significant factor motivating the adverse employment action.” HES
                                   14

cited City of Hampton v. Iowa Civil Rights Commission, 554 N.W.2d 532,

535 (Iowa 1996), and Hulme v. Barrett, 480 N.W.2d 40, 42 (Iowa 1992).

      C. Adverse Action. HES also objected to the court’s instruction

defining “adverse employment action.”     HES requested an instruction

that defined an adverse employment action as

      an action that detrimentally affects the terms, conditions, or
      privileges of employment. Changes in duties or working
      conditions that cause no materially significant disadvantage
      to the employee are not adverse employment actions. It
      includes, but is not limited to, employment actions such as
      termination of an employee, failure to promote, or any action
      that would discourage a reasonable employee from making a
      complaint of harassment. Giving an employee a performance
      improvement plan or negative employment review is not
      “adverse employment action” unless they are later used as a
      basis to alter the employee’s terms or conditions of
      employment in a detrimental way. Both the action and its
      context must be examined.

The district court declined to give HES’s proposed instruction and

instead gave Haskenhoff’s instruction, which listed more activities as

examples of adverse action:

                         INSTRUCTION NO. 30
                     ADVERSE ACTION – DEFINED
            “Adverse action” means any action which has material
      consequences to an employee. It is anything that might
      dissuade a reasonable person from making or supporting an
      allegation of discrimination or harassment.
             It includes but is not limited to, such employment
      actions as constructive discharge, reprimands or threats of
      reprimands, a change in opportunities, false accusations or
      complaints, being investigated, being placed on a
      performance improvement plan, being placed on probation,
      or other actions which adversely affect or undermine the
      position of the employee. It also includes an employer
      seeking out negative feedback on an employee, or condoning
      or encouraging other employees to complain about her. You
      should judge whether an action is sufficiently adverse from
      the point of view of a reasonable person in the plaintiff’s
      position.
                                   15

HES objected, stating the second paragraph was “misleading and an

incomplete statement of the law” because it included reprimands and

other matters never found to constitute adverse action.       The court

overruled the objection.

      D. Constructive      Discharge.   HES objected to the       court’s

instruction on constructive discharge, which was adopted verbatim from

Haskenhoff’s proposed instruction and stated,

                           INSTRUCTION NO. 33
               CONSTRUCTIVE DISCHARGE – EXPLAINED
             An employee is constructively discharged if the
      employer deliberately makes her working conditions
      intolerable so that the employee reasonably feels forced to
      quit. The work environment need not literally be unbearable
      to be intolerable under the law. The employer need not
      really want the employee to quit. It is sufficient that the
      employee’s resignation was a reasonably foreseeable
      consequence of the working conditions created or permitted
      by the employer.
            The employee must show that she was subjected to
      sexual harassment or retaliation [that] made her believe
      there was no chance for fair treatment at Homeland.
             An employee does not need to stay as an employee if
      she reasonably believes there is no possibility the employer
      will treat her fairly. It is enough if the employee has no
      recourse within the employer’s organization or reasonably
      believes there is no chance for fair treatment.         The
      intolerable working conditions may be created by either the
      action or inaction of the employer.

HES objected that the instruction was an “incomplete and misleading

statement of the law” because it injected a subjective standard. HES also

specifically objected to

      the court’s failure to include language as suggested by the
      defendant in its constructive discharge claim, including but
      not limited to a statement that “the employee has an
      obligation to be reasonable, not assume the worst and not
      jump to conclusions; conditions will not be considered
      intolerable unless the employer has been given reasonable
      chance to resolve the problem.”
                                    16

      E. The Court’s Ruling. Following argument on each of the jury

instructions, the court provided, “Court will overrule all of the objections

and exceptions to the instructions.      Court believes they’re appropriate

based on the factual record and the law as the court views it.” The case

proceeded to verdict.

      On October 23, the jury returned a verdict for Haskenhoff on both

counts and awarded damages in the amount of $1,400,000—$100,000 in

backpay, $300,000 in past emotional distress, and $1,000,000 in future

emotional distress.

      HES moved for a new trial on grounds of (1) the instructional

errors set forth above, (2) erroneous evidentiary rulings allowing

Dr. Fitzgerald to testify as to legal conclusions, (3) misconduct by

Haskenhoff’s counsel, and (4) excessive damages.        Haskenhoff filed a

motion requesting attorney fees and expenses of $846,364 and equitable

relief of frontpay of $240,000.

      The district court denied HES’s motion for new trial. Specifically,

the court found, “Jury instructions were thoroughly briefed by counsel

and discussed at length with the court both on and off the record.” The

court also noted that nearly all of HES’s asserted evidentiary errors were

based on issues already ruled upon by the court during HES’s motion for

summary judgment and motions in limine.             The court found the

attorneys’ conduct to be merely a product of zealous representation and

damages were not excessive. The court awarded frontpay and attorney

fees in the full amount requested and entered judgment for Haskenhoff

for a total of $2,486,364.

      HES filed a timely notice of appeal based on the issues raised in its

motion for new trial and excessive attorney fees. We retained the appeal.
                                   17

      II. Standard of Review.

      “We review alleged errors in jury instructions for correction of

errors at law.”   DeBoom v. Raining Rose, Inc., 772 N.W.2d 1, 5 (Iowa

2009) (quoting Boyle v. Alum-Line, Inc., 710 N.W.2d 741, 748 (Iowa

2006)).   Similarly, we review the district court’s refusal to give a

requested jury instruction for correction of errors at law.     Alcala v.

Marriott Int’l, Inc., 880 N.W.2d 699, 701 (Iowa 2016). “It is error for a

court to refuse to give a requested instruction where it ‘correctly states

the law, has application to the case, and is not stated elsewhere in the

instructions.’ ” DeBoom, 772 N.W.2d at 5 (quoting Vaughan v. Must, Inc.,

542 N.W.2d 533, 539 (Iowa 1996)). Instructional error “does not merit

reversal unless it results in prejudice.”   Id. (quoting Wells v. Enter.

Rent-A-Car Midwest, 690 N.W.2d 33, 36 (Iowa 2004)). Prejudicial error

results when instructions materially misstate the law or have misled the

jury. Id. Jury instructions must be considered “in their entirety” when

assessing prejudice.   Id. (quoting Anderson v. Webster City Cmty. Sch.

Dist., 620 N.W.2d 263, 265 (Iowa 2000)). “We assume prejudice unless

the record affirmatively establishes that there was no prejudice.” Rivera

v. Woodward Res. Ctr., 865 N.W.2d 887, 903 (Iowa 2015).

      “We review a trial court’s decision to admit or exclude expert

testimony for an abuse of discretion.” Ranes v. Adams Labs., Inc., 778

N.W.2d 677, 685 (Iowa 2010). We reverse district court rulings on the

admissibility of expert opinion testimony “only when the record shows

‘the court exercised [its] discretion on grounds or for reasons clearly

untenable or to an extent clearly unreasonable.’ ”      Id. (alteration in

original) (quoting State v. Maghee, 573 N.W.2d 1, 5 (Iowa 1997)).

Grounds are untenable when they are unsupported by substantial

evidence or based on an erroneous application of the law. Id.
                                           18

      III. Analysis.

      The first question we must decide is whether Haskenhoff could

recover from HES on a direct negligence theory for harassment by her

supervisor, Howes.           HES contends a supervisor-harassment action

requires     a   vicarious     liability   theory   and   an   affirmative-defense

instruction, while only a coworker-harassment action can be brought

under a direct-liability negligence (direct negligence) theory. Haskenhoff

contends a plaintiff may sue the employer under a direct negligence

theory for both supervisor and coworker harassment. We hold employers

can be held liable for supervisor harassment under the ICRA on a direct

negligence theory. However, the plaintiff must prove the employer failed

to take prompt and appropriate remedial action to end the harassment, a

fighting factual issue at trial.       Because the district court’s marshaling

instruction omitted that element, a new trial is required.

      We next address the three remaining instructional errors in turn.

We conclude the jury was misinstructed on the causation element for

retaliation, on the definition of adverse employment action, and on

constructive discharge.          These prejudicial instructional errors also

require a new trial.         Finally, because the issue is likely to recur on

remand, we address the admissibility of Dr. Fitzgerald’s testimony and

conclude the district court did not abuse its discretion by allowing her

testimony.

      A. Does the ICRA Allow a Plaintiff to Bring a Direct Negligence

Claim Against the Employer for Supervisor Harassment? The parties

agree that a plaintiff may sue an employer under a vicarious liability

theory for supervisor harassment and may bring a direct negligence

claim against the employer for coworker harassment. The fighting issue

is whether the direct negligence theory also may be used for supervisor
                                     19

harassment.    Because supervisors are employees and the caselaw has

not limited recovery to vicarious liability, we conclude a plaintiff can elect

to sue an employer for supervisor harassment under either theory.

      We begin with the text of the statute. Iowa Code section 216.6(1)

(2011) forbids the creation of a hostile working environment, stating,

      It shall be an unfair or discriminatory practice for any:
             a. Person to refuse to hire, accept, register, classify, or
      refer for employment, to discharge any employee, or to
      otherwise discriminate in employment against any applicant
      for employment or any employee because of the . . . sex . . .
      of such applicant or employee, unless based upon the nature
      of the occupation.

To establish a hostile-work-environment claim under the ICRA,

      the plaintiff must show: (1) he or she belongs to a protected
      group; (2) he or she was subjected to unwelcome
      harassment; (3) the harassment was based on a protected
      characteristic; and (4) the harassment affected a term,
      condition, or privilege of employment.

Boyle, 710 N.W.2d at 746 (quoting Farmland Foods, 672 N.W.2d at 744).

Harassment affects a term, condition, or privilege of employment “[w]hen

the workplace is permeated with ‘discriminatory intimidation, ridicule,

and insult’ . . . ‘sufficiently severe or pervasive to alter the conditions of

the victim’s employment and create an abusive working environment.’ ”

Farmland Foods, 672 N.W.2d at 743 (alterations in original) (quoting

Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S. Ct. 367, 370 (1993)).

When harassment is perpetrated by a nonsupervisory employee, an

employer will be liable if the plaintiff proves the employer “knew or

should have known of the harassment and failed to take proper remedial

action.” Id. at 744 (quoting Stuart v. Gen. Motors Corp., 217 F.3d 621,

631 (8th Cir. 2000)).    However, when harassment is perpetrated by a

supervisory employee, an employer may be subject to vicarious liability.
                                          20

Id.   The employer defending a vicarious liability claim may assert the

Faragher–Ellerth affirmative defense

       by showing it: (1) “exercised reasonable care to prevent and
       correct promptly any . . . harassing behavior,” and (2) “that
       the plaintiff employee unreasonably failed to take advantage
       of preventive or corrective opportunities provided by the
       employer or to avoid harm otherwise.”

Id. at 744 n.2 (quoting Faragher, 524 U.S. at 807, 118 S. Ct. at 2293).

       HES argues the jury should have been instructed on vicarious

liability, including the Faragher–Ellerth defense, because vicarious

liability replaced the negligence standard for supervisor harassment.

Haskenhoff argues the vicarious liability standard did not replace, but

rather supplemented, the direct negligence standard. Because the ICRA

hostile-work-environment claim is modeled after its Title VII counterpart,

we consider federal law instructive. 2           Boyle, 710 N.W.2d at 749–50

(recognizing that Title VII hostile-work-environment claim has the same

elements as ICRA claim); see also DeBoom, 772 N.W.2d at 7 (“When

interpreting discrimination claims under Iowa Code chapter 216, we turn

       2It  has been suggested that we should not rely on federal law because Iowa civil
rights statutes were enacted before Title VII. The Iowa legislature, however, did not
expressly include a hostile-work-environment provision in the ICRA. See Iowa Code
§ 216.6(1). Rather, the claim has been developed through our caselaw, beginning in
1990, based expressly on Title VII precedent. We first recognized a hostile-work-
environment claim for sex discrimination in Lynch v. City of Des Moines, 454 N.W.2d
827, 833 (Iowa 1990), relying on Chauffeurs, Teamsters & Helpers, Local Union No. 238
v. Iowa Civil Rights Commission, 394 N.W.2d 375, 378 (Iowa 1986). Chauffeurs, in turn,
delineated the elements of a racial hostile-work-environment harassment claim, relying
on Henson v. City of Dundee, 682 F.2d 897, 909 (11th Cir. 1982), a Federal Title VII
case, for the appropriate framework under the ICRA. Chauffeurs, 394 N.W.2d at 378,
381 (holding union liable when members harassed African-American man with racial
epithets and threatening actions). In Meritor Savings Bank, FSB v. Vinson, the Supreme
Court also relied on Henson to adopt the framework for a Title VII hostile-work-
environment claim for sex discrimination. 477 U.S. 57, 66–67, 106 S. Ct. 2399, 2405
(1986). Henson states that to hold an employer responsible for “creating or condoning
[a hostile] environment at the workplace,” the plaintiff must prove, among other things,
“the employer knew or should have known of the harassment in question and failed to
take prompt remedial action.” 682 F.2d at 901, 905.
                                       21

to federal law, including Title VII of the United States Civil Rights Act

. . . .”).   Accordingly, we will review the development of these liability

theories under federal caselaw and the interplay of those decisions with

our court’s precedents.

         The United States Supreme Court first recognized hostile-work-

environment sexual harassment as actionable discrimination in Meritor

Savings Bank, FSB v. Vinson, 477 U.S. 57, 66, 106 S. Ct. 2399, 2405

(1986), notably a supervisor-harassment case.          Although the Court

declined to adopt a definitive rule for sexual-harassment liability, it

expressly rejected the notion that “employers are always automatically

liable for sexual harassment by their supervisors.” Id. at 72, 106 S. Ct.

at 2408. Instead, the Court looked to “agency principles for guidance” in

setting liability standards.    Id.   A four-justice concurrence noted the

predominant standard at the time for coworker-harassment liability: that

an employer will be liable when it “knows or should have known of the

conduct, unless it can show that it took immediate and appropriate

corrective action.” Id. at 74, 106 S. Ct. at 2409 (Marshall, J., concurring)

(quoting 29 C.F.R. § 1604.11(c), (d) (1985)).

         Four years later, in Lynch v. City of Des Moines, we held that

“maintenance of a sexually hostile work environment through sexual

harassment is a form of illegal sex discrimination under [the ICRA].” 454

N.W.2d 827, 833 (Iowa 1990). We determined the plaintiff was required

to prove “the employer knew or should have known of the harassment

and failed to take prompt and appropriate remedial action.”              Id.

Although Lynch was a coworker-harassment case, subsequent decisions

recognized this standard applied to both supervisor and coworker

harassment under the ICRA.            See Greenland v. Fairtron Corp., 500
                                   22

N.W.2d 36, 38 (Iowa 1993) (citing same standard for supervisor

harassment); Vaughn v. Ag Processing, Inc., 459 N.W.2d 627, 634 (Iowa

1990) (en banc) (applying same standard to supervisor harassment);

Edmunds v. Mercy Hosp., 503 N.W.2d 877, 879 (Iowa Ct. App. 1993)

(noting same standard for supervisor harassment).

      In 1998, the United States Supreme Court recognized employer

vicarious liability for supervisor harassment. Ellerth, 524 U.S. at 759,

118 S. Ct. at 2267.     The Court relied on the Restatement (Second) of

Agency, which states,

      (2) A master is not subject to liability for the torts of his
      servants acting outside the scope of their employment,
      unless:
            ....
            (b) the master was negligent or reckless, or
            ....
            (d) the servant purported to act or speak on behalf of
      the principal and there was reliance upon apparent
      authority, or he was aided in accomplishing the tort by the
      existence of the agency relation.

Id. at 758, 118 S. Ct. at 2267 (quoting Restatement (Second) of Agency

§ 219(2) (1957)).   The Court reasoned harassment committed by a

supervisor was “aided by the agency relation” within the scope of section

(d) when a supervisor takes a tangible employment action against the

employee because “the injury could not have been inflicted absent the

agency relation. . . . A tangible employment decision requires an official

act of the enterprise, a company act.” Id. at 761–62, 763, 118 S. Ct. at

2269; see also Faragher, 524 U.S. at 802, 118 S. Ct. at 2290 (“[I]n

implementing Title VII it makes sense to hold an employer vicariously

liable for some tortious conduct of a supervisor made possible by abuse

of his supervisory authority, and that the aided-by-agency-relation

principle embodied in § 219(2)(d) of the Restatement provides an
                                     23

appropriate starting point for determining liability . . . .”).   In addition,

even when no tangible employment action results, the Court observed

that “a supervisor’s power and authority invests his or her harassing

conduct with a particular threatening character, and in this sense, a

supervisor is always aided by the agency relation.” Ellerth, 524 U.S. at

763, 118 S. Ct. at 2269. Thus, the Court held that the employer would

be vicariously liable unless it could show

      (a) that [it] exercised reasonable care to prevent and correct
      promptly any sexually harassing behavior, and (b) that the
      plaintiff employee unreasonably failed to take advantage of
      any preventive or corrective opportunities provided by the
      employer or to avoid harm otherwise.

Id. at 765, 118 S. Ct. at 2270. The Court echoed this vicarious liability

standard for supervisor liability in Faragher, another supervisor-

harassment case decided on the same day. 524 U.S. at 807, 118 S. Ct.

at 2292–93.

      Iowa adopted the vicarious liability standard of Ellerth and

Faragher in Farmland Foods, a hostile-work-environment claim under

the ICRA.     672 N.W.2d at 744.          Since then, employees bringing

harassment claims under the ICRA have used the vicarious liability
standard to hold employers liable for supervisor harassment. See, e.g.,

Reed v. Cedar County, 474 F. Supp. 2d 1045, 1061–62 (N.D. Iowa 2007);

Krambeck v. Children & Families of Iowa, Inc., 451 F. Supp. 2d 1037,

1041 (S.D. Iowa 2006); Lopez v. Aramark Unif. & Career Apparel, Inc.,

426 F. Supp. 2d 914, 949 (N.D. Iowa 2006); Fisher v. Elec. Data Sys., 278

F. Supp. 2d 980, 986–87 (S.D. Iowa 2003).

      Merely because vicarious liability is available in cases of supervisor

harassment does not mean the negligence standard in place before

Ellerth, Faragher, and Farmland Foods has been abrogated.              To the
                                     24

contrary, Ellerth expressly states that the direct negligence standard, set

forth in subsection (b) of the Restatement of Agency, remains an

alternative ground for establishing employer liability for supervisor

harassment:

              Subsections (b) and (d) are possible grounds for
      imposing employer liability on account of a supervisor’s acts
      and must be considered. Under subsection (b), an employer
      is liable when the tort is attributable to the employer’s own
      negligence.      Thus, although a supervisor’s sexual
      harassment is outside the scope of employment because the
      conduct was for personal motives, an employer can be liable,
      nonetheless, where its own negligence is a cause of the
      harassment. An employer is negligent with respect to sexual
      harassment if it knew or should have known about the
      conduct and failed to stop it. Negligence sets a minimum
      standard for employer liability under Title VII; but Ellerth
      seeks to invoke the more stringent standard of vicarious
      liability.

Ellerth, 524 U.S. at 758–59, 118 S. Ct. at 2267 (emphasis added)

(citation omitted).     We conclude the vicarious liability theory was

intended to supplement, not replace, the direct negligence theory for

supervisor harassment.

      The Supreme Court’s decision in Vance v. Ball State University, 570

U.S. ___, 133 S. Ct. 2434 (2013), is not to the contrary.       At issue in
Vance was whether a certain employee was merely a coworker, for which

the employer could only be held liable under the negligence standard, or

a supervisor, for which the employer could also face vicarious liability.

See id. at ___, 133 S. Ct. at 2443.    The Court stated that “Ellerth and

Faragher   identified    two   situations   in   which   the   aided-in-the-

accomplishment rule warrants employer liability even in the absence of

negligence.”   Id. at ___, 133 S. Ct. at 2441 (emphasis added).        That

sentence simply confirms a nonnegligent employer can be vicariously

liable for its supervisor’s harassment. See id. at ___, 133 S. Ct. at 2439
                                     25

(“[A]n employer’s liability for such harassment may depend on the status

of the harasser.” (Emphasis added.)). We read nothing in Vance that

precludes allowing a direct negligence theory.     While Vance notes that

“[i]n cases in which the harasser is a ‘supervisor’ . . . different rules

apply,” that simply reiterates that vicarious liability is imposed only for

supervisor harassment, not for harassment by a nonsupervisory

coemployee. Id. at ___, 133 S. Ct. at 2439.

       Several federal circuit courts of appeals after Ellerth and Faragher

have held that suits for supervisor harassment can be brought under

either vicarious liability or direct negligence theories. In Sharp v. City of

Houston, the United States Court of Appeals for the Fifth Circuit

recognized that a claim for supervisor harassment could proceed on a

negligence “knew or should have known” theory because the negligence

standard for supervisor harassment was “not disturbed by Faragher or

[Ellerth].”   164 F.3d 923, 929 (5th Cir. 1999).     The court noted that

although the negligence standard was typically applied to coworker

harassment, “[t]he concept of negligence thus imposes a ‘minimum

standard’ for employer liability—direct liability—under title VII, a

standard that is supplemented by the agency-based standards for

vicarious liability as articulated in Faragher and [Ellerth].” Id. (citation

omitted); see also Debord v. Mercy Health Sys. of Kan., Inc., 737 F.3d

642, 650–53 (10th Cir. 2013) (analyzing employer liability for supervisor

harassment under both negligence and vicarious liability standards);

Dees v. Johnson Controls World Servs., Inc., 168 F.3d 417, 421 (11th Cir.

1999) (“[A]n employer can be held directly liable for a supervisor’s

harassment when the employer either intended, or negligently permitted,

the tortious conduct to occur.”); Wilson v. Tulsa Junior Coll., 164 F.3d

534, 540 n.4 (10th Cir. 1998) (recognizing the “continuing validity of
                                     26

negligence as a separate basis for employer liability” in action in which

employee alleged supervisor harassment).       HES cites no decision that

holds a plaintiff cannot bring a direct negligence claim against an

employer for supervisor harassment, and we have found none.

      That employers are directly liable for their own negligence is not a

new proposition. The Restatement (Second) of Employment Law, section

4.02, at 134 (2015), entitled “Employer’s Direct Liability to Employees for

Its Own Conduct,” provides that “an employer is subject to liability in

tort to an employee for harm caused in the course of employment by the

tortious conduct of the employer or the controlling owner.”      (Emphasis

added.)   Similarly, the Restatement (Third) of Agency, section 7.03, at

151 (2006), provides that a principal is liable for its own negligence in

“selecting, supervising, or otherwise controlling the agent” in addition to

any vicarious liability that may be imposed via the agent’s actions.

      We hold that plaintiffs under the ICRA may proceed against the

employer on either a direct negligence or vicarious liability theory for

supervisor harassment in a hostile-work-environment case.                The

Faragher–Ellerth affirmative defense, with the burden of proof on the

employer, applies only to claims of vicarious liability. Ellerth, 524 U.S. at

764, 118 S. Ct. at 2270 (adopting affirmative defense “in order to

accommodate the agency principle of vicarious liability for harm caused

by misuse of supervisory authority” (emphasis added)); accord Faragher,

524 U.S. at 807, 118 S. Ct. at 2292; see also Johnson v. Shinseki, 811

F. Supp. 2d 336, 348 n.2 (D.D.C. 2011) (holding because the court

applied the negligence standard, “the Faragher defense is inapplicable”);

Swinton v. Potomac Corp., 270 F.3d 794, 803 (9th Cir. 2001) (stating

defense did not apply to negligence standard); Lintz v. Am. Gen. Fin., Inc.,

50 F. Supp. 2d 1074, 1081 (D. Kan. 1999) (rejecting Faragher–Ellerth
                                    27

defense in direct negligence action). By contrast, on a direct negligence

claim, the plaintiff must prove “the employer . . . failed to take prompt

and appropriate remedial action.” Lynch, 454 N.W.2d at 833.

      B. Whether the District Court Correctly Instructed the Jury

on the Direct Negligence Theory. We next address whether the jury

was correctly instructed on the direct negligence theory.     The district

court essentially adopted Haskenhoff’s proposed marshaling instruction,

which omitted an element she was required to prove—that HES “failed to

take prompt and appropriate remedial action.” Id. HES objected to the

omission of that element, and we conclude the district court prejudicially

erred by overruling the objection and giving Instruction No. 14 without

that language.   Whether HES in fact took “prompt and appropriate

action” was a fighting issue at trial and a jury question. Haskenhoff did

not establish as a matter of law that HES failed to take prompt and

appropriate action.

      The standard requiring a plaintiff to prove the employer’s failure to

take prompt remedial action “places a reasonable duty on an employer

who is aware of discrimination in the workplace to take reasonable steps

to remedy it.” Vaughn, 459 N.W.2d at 634. Whether the employer met

this duty is a question of fact and turns on “the gravity of the harm, the

nature of the work environment, and the resources available to the

employer.” Id.

      The first time Haskenhoff complained to management about

Howes’s harassment, senior management promptly met with her and

Howes. Howes was verbally confronted in a manner that led him and

others to believe he faced termination. Howes apologized to Haskenhoff,

and Haskenhoff, believing the harassment issue was resolved, asked that

no further action be taken at that time.     See Nurse “BE” v. Columbia
                                    28

Palms W. Hosp. Ltd. P’ship, 490 F.3d 1302, 1310 (11th Cir. 2007)

(holding that if employee “did not want [the harassing behavior] reported

or acted upon, then [the employer] would not have been placed on proper

notice of the harassment” (alterations in original) (quoting Olson v.

Lowe’s Home Ctrs., Inc., 130 F. App’x 380, 391 n.21 (11th Cir. 2005))).

Haskenhoff made no further complaints to management during the next

nine months.     HES management could reasonably assume its prior

remedial efforts were adequate. See An v. Regents of Univ. of Cal., 94

F. App’x 667, 676 (10th Cir. 2004) (determining employer not liable when

initial complaint limited to one comment that made employee feel

uncomfortable, then employee made no further complaint and assured

management that things were “okay” until second complaint).

      When Haskenhoff next complained of harassment in August of

2011, HES took immediate remedial action. A formal investigation was

launched with outside counsel.        Witnesses were interviewed.     HES

management      admonished      coemployees     to   conduct   themselves

professionally and take down the offensive screen saver.            Sexual

harassment training was scheduled.          Howes was disciplined and

apologized. See Wilson, 164 F.3d at 540 (jury may consider availability

and effectiveness of employer’s complaint procedure). HES was entitled

to have the jury decide whether Haskenhoff proved that it had failed to

take prompt and appropriate action.

      Haskenhoff argues Vance imposes liability when an employer is

negligent in allowing harassment to occur, regardless of notice or

subsequent corrective action.    We disagree.   Haskenhoff relies on this

sentence in Vance: “As an initial matter, an employer will always be liable

when its negligence leads to the creation or continuation of a hostile
                                            29

work environment.” 570 U.S. at ___, 133 S. Ct. at 2452. 3 However, the

Vance Court, two paragraphs later, reiterates the relevance of the

        3It has been suggested that Vance created two types of negligence liability,

negligence in failing to prevent the harassment and negligence in failing to remedy it.
But the standard for both negligent failure to prevent and negligent failure to remedy is
the same: an employer is only liable if he knows or should have known of the
harassment and failed to take prompt measures to rectify it. See, e.g., Ocheltree v.
Scollon Prods., Inc., 335 F.3d 325, 333–34 (4th Cir. 2003) (“[T]he employer may be liable
in negligence if it knew or should have known about the harassment and failed to take
effective action to stop it.” (Emphasis added.)); Sharp, 164 F.3d at 929 (“An employer
may be liable for sexual harassment if it ‘knew or should have known of the harassment
in question and failed to take prompt remedial action.’ ” (quoting Williamson v. City of
Houston, 148 F.3d 462, 464 (5th Cir. 1998)); Parkins v. Civil Constructors of Ill., Inc., 163
F.3d 1027, 1037 (7th Cir. 1998) (“[E]mployers are liable for a co-employee’s harassment
only ‘when they have been negligent either in discovering or remedying the harassment.’
An employer’s legal duty in co-employee harassment cases will be discharged if it takes
‘reasonable steps to discover and rectify acts of sexual harassment by its employees.’ ”
(citation omitted) (quoting Perry v. Harris Chernin, Inc., 126 F.3d 1010, 1013 (7th Cir.
1997))); Spicer v. Commw. of Va., Dep’t of Corr., 66 F.3d 705, 710 (4th Cir. 1995) (“On
the fourth element for establishing employer liability, we have repeatedly held that an
employer cannot be held liable for isolated remarks of its employees unless the
employer ‘knew or should have known of the harassment, and took no effectual action
to correct the situation.’ ” (quoting Katz v. Dole, 709 F.2d 251, 256 (4th Cir. 1983));
Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 677 (10th Cir. 1998) (stating it was an
“essential element for employer liability” that the plaintiff establish the employer
“inadequately responded to incidents of harassment of which it knew or should have
known”); Paroline v. Unisys Corp., 879 F.2d 100, 106 (4th Cir. 1989) (“In a hostile
environment claim such as we have here, an employer is liable for one employee’s
sexual harassment of another worker if the employer had ‘actual or constructive
knowledge of the existence of a sexually hostile working environment and took no
prompt and adequate remedial action.’ ” (quoting Swentek v. USAIR, Inc., 830 F.2d 552,
558 (4th Cir. 1987) (emphasis added))), vacated in part on other grounds, 900 F.2d 27
(4th Cir. 1990).
        The employer’s knowledge and response are key: if the employer did not have
notice of the harassment, either actual or constructive, the employer is not liable. If an
employer is negligent in failing to discover workplace harassment, the employee
proceeds under a should-have-known framework, but the employer’s responsive actions
are still relevant. See, e.g., Sharp, 164 F.3d at 930 (analyzing employer’s constructive
knowledge of conduct and concluding it could be liable because it should have known of
harassment and tolerated it); Adler, 144 F.3d at 673, 676–77; Paroline, 879 F.2d at 107
(stating that employee must prove the employer should have reasonably anticipated
harassment because of its pervasiveness and that the employer “failed to take action
reasonably calculated to prevent such harassment”). Here, however, it is undisputed
that HES had actual knowledge of the harassment—Haskenhoff complained twice.
Thus, the jury should have been instructed that HES was liable only if it failed to take
prompt responsive action.
                                           30

employer’s remedial efforts under a negligence theory: “Evidence that an

employer did not monitor the workplace, failed to respond to complaints,

failed to provide a system for registering complaints, or effectively

discouraged complaints from being filed would be relevant.” Id. at ___,

133 S. Ct. at 2453. Removing the requirement for the plaintiff to prove

the employer neglected to take corrective action would impose strict or

automatic liability on an employer whenever supervisor harassment

occurred without a tangible adverse employment action, a position our

court has never adopted and the Supreme Court has expressly declined

to adopt.     See Faragher, 524 U.S. at 804–05, 118 S. Ct. at 2291–92.

Haskenhoff cites cases that she contends establish that an employer can

be liable regardless of whether it took remedial action. Yet each of those

decisions indicates the employer’s remedial action or lack thereof is

relevant to whether it acted negligently. 4

       It has been suggested that the jury need not be instructed

regarding the employer’s remedial efforts if management, negligently

unaware of harassment, took no action.                     That is not this case.

        4See Rock v. Blaine, No. 8:14-CV-1421 MAD/CHF, 2015 WL 3795886, at *1, *5

(N.D.N.Y. June 17, 2015) (noting employer is liable when negligence “perpetuates” a
hostile environment, and despite plaintiff’s several complaints to supervisors, harasser’s
conduct “was not remedied”); Killis v. Cabela’s Retail II, Inc., No. 13 C 6532, 2015 WL
128098, at *13 (N.D. Ill. Jan. 8, 2015) (determining that under negligence theory for
supervisor liability, employer’s comprehensive and immediate response to plaintiff’s
complaint was a “fundamental obstacle” to her recovery (quoting Muhammad v.
Caterpillar, Inc., 767 F.3d 694, 698 (7th Cir. 2014)); Schmidlin v. Uncle Ed’s Oil Shoppes,
Inc., No. 2:13-CV-10552, 2014 WL 3809415, at *11 (E.D. Mich. Aug. 1, 2014) (“To
establish notice of and negligent failure to address harassment, an employee must show
that ‘the employer, through its agents or supervisory personnel, knew or should have
known of the charged sexual harassment and failed to implement prompt and
appropriate corrective action.’ ” (Emphasis added.) (quoting Kauffman v. Allied Signal,
Inc., 970 F.2d 178, 183 (6th Cir. 1992))); O’Connell v. Peppino’s Catering Co., LLC,
No. 1:13-CV-384, 2014 WL 794657, at *8 (W.D. Mich. Feb. 27, 2014) (noting under
state standard employer could be liable “only if the employer had reasonable notice of
the harassment and failed to take appropriate corrective action” (quoting Elezovic v.
Ford Motor Co., 697 N.W.2d 851, 861 (Mich. 2005))); Ríos DaSilva v. One, Inc., 980
F. Supp. 2d 148, 163 n.1 (D.P.R. 2013) (stating Vance serves to remind practitioners
“the employer is always liable if he was negligent in not taking action” (emphasis added)).
                                            31

Haskenhoff on two occasions complained to management about Howes’s

harassment.       On both occasions, management took action to stop the

harassment. It was for the jury to determine, under proper instructions,

whether HES’s responses were adequate—that is, whether it “failed to

take prompt and appropriate remedial action.”                   Lynch, 454 N.W.2d at

833.

       We decline to interpret the ICRA to impose employer liability for

supervisor harassment under a direct negligence theory despite the

employer’s prompt and appropriate action to end the harassment.

Notably, the Equal Employment Opportunity Commission (EEOC) in

interpreting Title VII does not go so far.               See 29 C.F.R. § 1604.11(d)

(2016) (“[A]n employer is responsible for acts of sexual harassment in the

workplace where the employer (or its agents or supervisory employees)

knows or should have known of the conduct, unless it can show that it

took immediate and appropriate corrective action.”                 (Emphasis added.)).

Indeed, most federal circuit model jury marshaling instructions for

sexual harassment under Title VII require the plaintiff to prove the

defendant failed to take prompt and appropriate remedial action. 5 None

        5See Pattern Jury Instruction for Cases of Emp’t Discrimination for the Dist. Cts.

of the U.S. Ct. of Appeals for the First Circuit 2.3 (2011) (requiring plaintiff to prove six
elements, including “Fifth, [defendant; management level employees of defendant] either
knew or should have known of the harassment; and Sixth, [defendant; management
level employees of defendant] failed to take prompt and appropriate remedial action”
(emphasis added) (footnote omitted)); Third Circuit Model Civil Jury Instruction 5.1.5
(2016) (“You must find for [defendant] if you find that [defendant] has proved both of the
following elements by a preponderance of the evidence: First, [Defendant] exercised
reasonable care to prevent harassment in the workplace on the basis of [protected
status], and also exercised reasonable care to promptly correct any harassing behavior
that does occur.” (Emphasis added.)); Fifth Circuit Pattern Civil Jury Instruction 11.4
(2014) (“Plaintiff [name] must prove that: a. the harassment was known by or
communicated to a person who had the authority to receive, address, or report the
complaint, . . . or the harassment was so open and obvious that Defendant [name]
should have known of it; and b. Defendant [name] failed to take prompt remedial action
designed to stop the harassment.” (Emphasis added.)); Fed. Civil Jury Instruction of the
                                           32

of the federal circuits hold an employer liable merely for “negligently

creating or continuing a hostile work environment”—as the jury was

instructed in this case. Rather, a party must not only show the employer

knew of the harassment, but also that it unreasonably failed to take

remedial action. See, e.g., Swinton, 270 F.3d at 803 (“[I]t was Swinton’s

burden . . . to prove that management knew or should have known of the

harassment and ‘failed to take reasonably prompt, corrective action.’ ”).

Under the instruction as given, the jury could have found HES liable

even if the jury found the employer had in fact taken prompt and

appropriate remedial action.

       Employers would lose a key incentive to take corrective action if

they were automatically liable for harassment whether or not they put a

stop to it. As the Fifth Circuit observed, “Imposing vicarious liability on

an employer for a supervisor’s ‘hostile environment’ actions despite its

swift and appropriate remedial response to the victim’s complaint would

. . . undermine not only Meritor but Title VII’s deterrent policy.” Indest v.

Freeman Decorating, Inc., 164 F.3d 258, 266 (5th Cir. 1999). Employers

are better deterred from allowing harassment to continue if their prompt

corrective action will avoid liability.         See Ellerth, 524 U.S. at 745, 118

S. Ct. at 2261 (“Limiting employer liability is also consistent with Title

_________________________
Seventh Circuit 3.04 (2015) (stating plaintiff must prove “seven things by a
preponderance of the evidence: . . . 7. Defendant did not take reasonable steps to [correct
the situation]/[prevent harassment from recurring”] (emphasis added)); Model Civil Jury
Instruction for the Dist. Cts. of the Eighth Circuit 8.42 (2017) (requiring plaintiff to
show seven elements, including “Seventh, the defendant failed to take prompt and
appropriate corrective action to end the harassment”); Model Civil Jury Instructions for
the Dist. Cts. of the Ninth Circuit 10.7 (2017) (“The plaintiff has the burden of proving
both of the following elements by a preponderance of the evidence: . . . 2. the
defendant or a member of the defendant’s management knew or should have known of
the harassment and failed to take prompt, effective remedial action reasonably calculated
to end the harassment.” (Emphasis added.)).
                                    33

VII’s purpose to the extent it would encourage the creation and use of

antiharassment policies and grievance procedures.”).

      Finally, allowing one marshaling instruction on direct negligence—

requiring the plaintiff to prove the employer knew or should have known

of the harassment and failed to take prompt and appropriate remedial

action—for   both   coemployee     and   supervisor    harassment    avoids

confusing jury instructions with differing standards.       It also avoids

issues over whether a particular employee is a supervisor.           Mixing

different authority levels of employees “presents no problem for the

negligence standard.” Vance, 570 U.S. at ___, 133 S. Ct. at 2452.

      Haskenhoff is the master of her own pleadings. But by deciding to

pursue a direct negligence theory for supervisor harassment, rather than

vicarious liability, she assumed the burden of proving not only that HES

knew or should have known of Howes’s harassment, but also that it

failed to take prompt remedial action to stop it. Lynch, 454 N.W.2d at

833–34.

             While the reasonableness of an employer’s response to
      sexual harassment is at issue under both standards, the
      plaintiff must clear a higher hurdle under the negligence
      standard, where she bears the burden of establishing her
      employer’s negligence, than under the vicarious liability
      standard, where the burden shifts to the employer to prove
      its own reasonableness and the plaintiff’s negligence.

Curry v. District of Columbia, 195 F.3d 654, 660 (D.C. Cir. 1999); see also

Swinton, 270 F.3d at 804 (“It might reasonably be argued, in fact, that

employers are ‘better off’ in the negligence context, where the plaintiff is

required to prove both the employer’s knowledge of the harassment (or

that it should have known) and that it failed to take reasonable corrective

action.”). The district court erred by omitting that element of proof from

Instruction No. 14. This error was not harmless.
                                    34

      Reversal is required when jury instructions contain a “material

misstatement of the law” or are misleading or confusing.       Rivera, 865

N.W.2d at 902. When an instruction fails to convey a central principle of

liability, this warrants a new trial. See Benn v. Thomas, 512 N.W.2d 537,

539–40 (Iowa 1994) (remanding for new trial when jury instruction on

proximate cause “failed to adequately convey the existing law”); Law v.

Hemmingsen, 249 Iowa 820, 825–26, 89 N.W.2d 386, 390–91 (1958)

(determining refusal to instruct on well-settled principle of negligence “at

the very heart of the case” was error). The instruction omitted a central

element of the plaintiff’s claim—to show the failure of the employer to

take prompt and appropriate remedial action. Omission of this element

was a material misstatement of the law and entitles HES to a new trial.

See State v. Pearson, 804 N.W.2d 260, 265 n.1 (Iowa 2011) (holding

omission in the jury instruction of element of offense “requires a new

trial”); Law, 249 Iowa at 825–26, 89 N.W.2d at 390–91 (reversing

because it was error for court to refuse to instruct on combined

negligence).

      “We assume prejudice unless the record affirmatively establishes

that there was no prejudice.” Rivera, 865 N.W.2d at 903. No prejudice

results when “one instruction arguably omits a legal requirement that is

included in subsequent instructions on the ground that the instructions

are to be read as a whole.”        Id.   “When, however, an inadequate

instruction relating to the right of recovery goes to ‘the very heart of the

case,’ it is not rescued by abstract instructions elsewhere.” Id. (quoting

Law, 249 Iowa at 825, 89 N.W.2d at 390). That is what we have here.

      The district court gave a separate instruction, No. 24, on remedial

action, which stated,
                                           35
             Once an employer knows or should have known of
       sexual harassment, it must take prompt remedial action
       reasonably calculated to end the conduct. The employer has
       the duty to take this remedial action even if an employee
       asks the employer not to do anything.

(Emphasis omitted.)         This instruction was not cross-referenced in the

marshaling instruction or any other instruction and does not cure the

flaw in the marshaling instruction when the instructions are read as a

whole. The jury was nowhere told Haskenhoff had the burden to prove

HES failed to take prompt and appropriate remedial action to end the
harassment. 6

       Haskenhoff cites no case holding the fatal omission in the

marshaling instruction could be cured by counsel during summation.7


       6Nor  is the plaintiff’s burden of proof addressed in Instruction No. 22, entitled
“Existence of Official Policies—Explained,” which told the jury that they could “consider
whether the defendant exercised reasonable care to”
       [a] Monitor the workplace;
       [b] Provide a system for making complaints;
       [c] Encourage employees who believe they are being harassed to
       complain;
       [d] Conduct prompt, thorough and impartial investigations into any
       potential sexual harassment they become aware of, whether it is through a
       complaint or observation or hearsay;
       [e] Reasonably assure that any person who reports sexual harassment
       will not suffer retaliation;
       [f] Communicate their harassment policy to employees so employees will
       understand what they may and may not do in the workplace;
       [g] Educate the workforce, especially members of management, with
       appropriate training to avoid committing sexual harassment . . . .
(Emphasis added.) This instruction allowed the jury to find for Haskenhoff if HES was
negligent in any of the above respects, even if the jury found the employer in fact took
prompt and appropriate remedial action to end the harassment.
       7Hillrichs v. Avco Corp. is not to the contrary. 478 N.W.2d 70 (Iowa 1991),
overruled on other grounds by Reed v. Chrysler Corp., 494 N.W.2d 224, 230 (Iowa 1992),
overruled by Jahn v. Hyundai Motor Corp., 773 N.W.2d 550, 558–60 (Iowa 2009)).
There, we determined a uniform jury instruction on ordinary care adequately conveyed
the proper legal concept to the jury because it referred to care that “a reasonably careful
person would use under similar circumstances.” Id. at 74. We noted that the words
“under similar circumstances” allowed the standard to “adjust[] to both the status of
                                          36

To the contrary, Haskenhoff’s counsel took advantage of the flawed jury

instruction in her closing argument. She did not say it was plaintiff’s

burden to prove HES failed to take prompt remedial action, but instead

argued

       Number 24 talks about remedial action. Once an employer
       knows or should know about the sexual harassment, it must
       take prompt remedial action reasonably calculated to end
       the conduct. The employer has a duty to take this remedial
       action even if an employee asks the employer to do nothing.

(Emphasis added.) This is not a case like State v. Thorndike in which

counsel’s closing argument effectively cured the instructional error by

conceding the improper instruction did not apply under the evidence.

860 N.W.2d 316, 322–23 (Iowa 2015).

       There was no instruction given by the court that allowed HES to

argue plaintiff could not recover without proving it failed to take prompt

remedial action.      Closing arguments were lengthy, extending from the

morning until 2:30 p.m. and encompassing 130 pages of the trial

transcript. Closing arguments “generally carry less weight with a jury

than do instructions from the court.” Boyde v. California, 494 U.S. 370,

384, 110 S. Ct. 1190, 1200 (1990).             “The former are usually billed in
advance to the jury as matters of argument, not evidence, and are likely

viewed as the statements of advocates; the latter . . . are viewed as

definitive and binding statements of the law.” Id. (citation omitted).




_________________________
the actor and the circumstances that the actor faces.” Id. We continued, “These are
matters that may be adequately conveyed to the jury by the evidence and by argument
of counsel under the instruction that the court gave.” Id. Hillrichs did not involve the
omission of an element of proof from the marshaling instruction.
                                           37

       We therefore determine HES is entitled to a new trial. 8 Rivera, 865

N.W.2d at 892 (“Prejudice occurs and reversal is required if jury

instructions have misled the jury, or if the district court materially

misstates the law.”).

       C. Whether the District Court Erred in Instructing on a

“Motivating Factor” Standard for Retaliatory Discharge. HES argues

the district court erroneously adopted the lower “motivating factor”

causation standard used in discriminatory discharge claims (Iowa Code

section 216.6(1)(a)), rather than the higher “significant factor” causation

standard used in retaliatory discharge claims (Iowa Code section


       8Because  it may arise on remand, we clarify Haskenhoff cannot prove that HES
“knew or should have known” and failed to take remedial action by showing only that
Howes “knew what he was doing” when he behaved inappropriately toward Haskenhoff.
For example, the following exchange took place between Wendland and Haskenhoff’s
counsel regarding the alleged harassment:
               Q. So regardless of whether somebody complains, if men are
       commenting on another female’s breasts in the workplace, that would be
       a violation of Homeland’s policy? A. Absolutely. If it was brought to my
       attention and I knew about it or anybody in the company knew about it,
       we would address it immediately.
             Q. Including the plant manager?            A. Including the plant
       manager.
              Q. And obviously if your plant manager is making the comments
       about a woman’s breast, he knows he’s doing that; yes?
It is not sufficient that the perpetrator himself knows what he is doing, even if he is a
supervisor. Rather, to be placed on actual notice, someone “with authority to address
the problem” must be notified. Sharp, 164 F.3d at 930 (quoting Nash v. Electrospace
Sys., Inc., 9 F.3d 401, 404 (5th Cir. 1993); see also Sandoval v. Am. Bldg. Maint. Indus.,
Inc., 578 F.3d 787, 801 (8th Cir. 2009) (“An employer has actual notice of harassment
when sufficient information either comes to the attention of someone who has the power
to terminate the harassment, or it comes to someone who can reasonably be expected to
report or refer a complaint to someone who can put an end to it.”). The inquiry must
focus on whether someone with authority to discipline Howes and to take remedial
action knew of and failed to address the conduct. Sharp, 164 F.3d at 930 (“In the
context of sexual harassment, such persons are those with remedial power over the
harasser.”). Alternatively, Haskenhoff may prove constructive knowledge by showing
harassment was so open and pervasive that, in the exercise of reasonable care, it
should have been discovered by management-level employees.               See Alvarez v.
Des Moines Bolt Supply, Inc., 626 F.3d 410, 422 (8th Cir. 2010).
                                     38

216.11(2)).   Haskenhoff argues that (1) under DeBoom, 772 N.W.2d at

12–13, the correct causation standard for all ICRA claims is the

motivating-factor test, and (2) unlike federal law, a lower causation

standard for retaliation should be used because the ICRA is a unified

statute and should be read broadly to effectuate its broad remedial goals.

See Iowa Code § 216.18(1). We note DeBoom was not a retaliation case

and apply our retaliation decisions that require the higher causation

standard. 772 N.W.2d at 13.

      Our analysis begins with the text of the statute. The ICRA, Iowa

Code section 216.11(2), makes it an unfair or discriminatory practice for

      [a]ny person to . . . retaliate against another person in any of
      the rights protected against discrimination by this chapter
      because such person has lawfully opposed any practice
      forbidden under this chapter, obeys the provisions of this
      chapter, or has filed a complaint, testified, or assisted in any
      proceeding under this chapter.

In order to recover for retaliatory discharge, the plaintiff must prove

      (1) he or she was engaged in statutorily protected activity,
      (2) the employer took adverse employment action against
      him or her, and (3) there was a causal connection between
      his or her participation in the protected activity and the
      adverse employment action taken.

Boyle, 710 N.W.2d at 750.         The causation standard in retaliatory

discharge cases has been characterized as “a high one.”              City of

Hampton, 554 N.W.2d at 535 (quoting Hulme, 480 N.W.2d at 42). The

causal connection “must be a ‘significant factor’ motivating the adverse

employment decision.” Id. (quoting Hulme, 480 N.W.2d at 42). A factor

is significant if the reason “ ‘tips the scales decisively one way or the

other,’ even if it is not the predominate reason behind the employer’s

decision.” Teachout v. Forest City Cmty. Sch. Dist., 584 N.W.2d 296, 302
                                          39

(Iowa 1998) (quoting Smith v. Smithway Motor Xpress, Inc., 464 N.W.2d

682, 686 (Iowa 1990)).

       A separate provision, Iowa Code section 216.6(1)(a), forbids

discriminatory discharge, i.e., discharge because of discrimination based

on a protected characteristic.           Retaliatory discharge is different; it

prohibits discharge or discrimination based on the employee’s engaging

in a protected activity. See id. § 216.11(2). Though the two concepts are

related, they are not the same; one prohibits status-based discriminatory

discharge, while the other prohibits discharge based on a protected

activity in which an employee chooses to engage. See Univ. of Tex. Sw.

Med. Ctr. v. Nassar, 570 U.S. ___, ___, 133 S. Ct. 2517, 2532 (2013)

(explaining the difference between status-based claims and retaliation

claims). Under the discriminatory discharge statute, an employee must

show discrimination based on a characteristic—not engaging in a

protected activity—constituted a “motivating factor” in the adverse action

of the employer.      DeBoom, 772 N.W.2d at 12–13.               Discrimination is a

“motivating factor” in an adverse action if an employee’s status as a

member of a protected class “played a part” in the employer’s decision.

Id. at 12 (emphasis omitted). This is a lower causation standard than the

significant-factor standard applied in retaliatory discharge cases under

the ICRA and the common law. 9

       DeBoom clarified that the motivating-factor test applied to

discriminatory discharge cases. See DeBoom, 772 N.W.2d at 13. But it

did not alter—or even reference by name or Code section—retaliatory

       9This  standard does not require retaliation to be the sole cause; the retaliatory
motive may combine with other factors to produce the result so long as “the other
factors alone would not have done so—if, so to speak, it was the straw that broke the
camel’s back.” Burrage v. United States, 571 U.S. ___, ___, 134 S. Ct. 881, 888 (2014).
                                    40

discharge claims. Id. Rather, in DeBoom, we were careful to note the

difference between the discriminatory discharge causation standard and

the “higher” causation standard of claims such as tortious discharge. Id.

We have frequently compared tortious discharge under common law and

retaliatory discharge under the ICRA, as the two have traditionally

possessed similar elements and causation standards. See Teachout, 584

N.W.2d at 301–02 (stating high causation standard for tortious discharge

and comparing to Hulme, a retaliatory discharge case under the ICRA);

see also Brown v. Farmland Foods, Inc., 178 F. Supp. 2d 961, 979 (N.D.

Iowa 2001) (“[T]he Iowa Supreme Court has consistently sought guidance

in its common-law retaliatory discharge cases from its decisions involving

claims of statutory retaliation, which further demonstrates that the Iowa

Supreme Court would analyze these distinct causes of action in a similar

manner.”); cf. Scott Rosenberg & Jeffrey Lipman, Developing a Consistent

Standard for Evaluating a Retaliation Case Under Federal and State Civil

Rights Statutes and State Common Law Claims: An Iowa Model for the

Nation, 53 Drake L. Rev. 359, 414–15 (2005) (“The federal courts have

used the same approach in defining actionable employment conduct in

both statutory and common law cases.”). We noted in DeBoom that the

lower motivating-factor standard did not apply to tortious discharge, nor

was it intended to alter the higher significant-factor causation standard

used in ICRA retaliatory discharge claims. 772 N.W.2d at 13.

      Because Count II alleged retaliatory discharge under Iowa Code

section   216.11   and   not   discriminatory   discharge   under   section

216.6(1)(a), the jury should have been instructed on the correct

causation   standard—requiring Haskenhoff to        prove   her   protected

conduct was a significant factor. See, e.g., French v. Cummins Filtration,

Inc., No. C11-3024-MWB, 2012 WL 3498566, at *3 (N.D. Iowa Aug. 15,
                                           41

2012) (“[Under ICRA] [a]s to the causal connection element, the standard

is high: ‘[T]he “causal connection” must be a “significant factor”

motivating the adverse employment decision.’ ” (alteration in original)

(quoting City of Hampton, 554 N.W.2d at 535)); Gilster v. Primebank, 884

F. Supp. 2d 811, 831 n.4 (N.D. Iowa 2012) (analyzing both Title VII and

ICRA together using determinative-factor approach), overruled on other

grounds, 747 F.3d 1007 (8th Cir. 2014); Van Horn v. Best Buy Stores,

L.P., 526 F.3d 1144, 1148 (8th Cir. 2008) (applying same higher

causation to ICRA and federal claim).

       Haskenhoff       notes    the    ICRA       discriminatory     discharge      and

retaliatory discharge provisions use “similar” language.                Compare Iowa

Code § 216.6(1)(a) (stating it is a “discriminatory practice for any . . .

[p]erson to . . . discharge any employee . . . because of” a protected

characteristic (emphasis added)), with id. § 216.11 (stating it is a

“discriminatory practice for . . . [a]ny person to discriminate or retaliate

against    another     person     in   any    of   the   rights    protected     against

discrimination by this chapter because such person has lawfully opposed

any practice forbidden under this chapter” (emphasis added)). 10 But, as

we previously noted in Estate of Harris v. Papa John’s Pizza, the



       10The    phrase “because of” does not require a motivating-factor standard of
causation. As the Supreme Court noted in Nassar, the default rule in interpreting
causation in tort is that “[i]n the usual course, this standard requires plaintiff to show
‘that the harm would not have occurred’ in the absence of—that is, but for—the
defendant’s conduct.” 570 U.S. at ___, 133 S. Ct. at 2525 (quoting Restatement of Torts
§ 431 cmt. a (1934) (negligence)). Additionally, “the ordinary meaning of ‘because of’ is
‘by reason of’ or ‘on account of.’ ” Id. at ___, 133 S. Ct. at 2527 (quoting Gross v. FBL
Fin. Servs., Inc., 557 U.S. 167, 176, 129 S. Ct. 2343, 2350 (2009)). Thus, the Nassar
Court concluded that when interpreting “because of,” it must mean that the retaliatory
intent was “ ‘the “reason” that the employer decided to act,’ or, in other words, that
‘[retaliation] was the “but-for” cause of the employer’s adverse decision.’ ” Id. at ___,
133 S. Ct. at 2527 (quoting Gross, 557 U.S. at 176, 129 S. Ct. at 2350).
                                        42

retaliation provision of the ICRA mirrors almost exactly the retaliation

provision of Title VII, which states,

      It shall be an unlawful employment practice for an employer
      to discriminate against any of his employees . . . because he
      has opposed any practice made an unlawful employment
      practice by this subchapter, or because he has made a
      charge, testified, assisted, or participated in any manner in
      an investigation, proceeding, or hearing under this
      subchapter.

679 N.W.2d 673, 677 (Iowa 2004) (quoting 42 U.S.C.A. § 2000e–3

(2004)). “Title VII was designed to ensure equal opportunity in
employment for all, regardless of sex. The ICRA was modeled after Title

VII, and therefore we have consistently employed federal analysis when

interpreting the ICRA.”    Id. at 677–78 (citation omitted).     Finally, the

ICRA’s elements for establishing a prima facie case of retaliation were

derived “from federal decisions involving comparable provisions of Title

VII of the Civil Rights Act of 1964.” Hulme, 480 N.W.2d at 42 (citing 42

U.S.C. §§ 2000e–2000e-3).

      Title VII provides a higher causation standard for retaliation claims

than discriminatory discharge actions. See Nassar, 570 U.S. at ___, 133

S. Ct. at 2534. In Nassar, a retaliation case brought under Title VII, the

Supreme Court explained that in codifying the 1991 Amendment to the

Civil Rights Act, Congress did not intend to lower the causation standard

for retaliatory discharge cases, although it unquestionably did so for

discriminatory discharge. Id. at ___, 133 S. Ct. at 2528–30. The Court

reasoned that the two provisions used different language and were found

in different sections of the Act and that Congress had inserted the

amendment into only one part.           Id.   The Court also pointed out the

increasing number of retaliation claims being filed. Id. at ___, 133 S. Ct.
                                      43

at 2531. Lowering the causation standard, the Court explained, could

increase the number of unfounded claims:

              In addition lessening the causation standard could
       also contribute to the filing of frivolous claims, which would
       siphon resources from efforts by employer[s], administrative
       agencies, and courts to combat workplace harassment.
       Consider in this regard the case of an employee who knows
       that he or she is about to be fired for poor performance,
       given a lower pay grade, or even just transferred to a
       different assignment or location. To forestall that lawful
       action, he or she might be tempted to make an unfounded
       charge of racial, sexual, or religious discrimination; then,
       when the unrelated employment action comes, the employee
       could allege that it is retaliation. . . . Even if the employer
       could escape judgment after trial, the lessened causation
       standard would make it far more difficult to dismiss dubious
       claims at the summary judgment stage.              It would be
       inconsistent with the structure and operation of Title VII to
       so raise the costs, both financial and reputational, on an
       employer whose actions were not in fact the result of any
       discriminatory or retaliatory intent. Yet there would be a
       significant risk of that consequence if respondent’s position
       were adopted here.

Id. at ___, 133 S. Ct. at 2531–32 (citations omitted).

       Turning to the ICRA, the retaliatory discharge and discriminatory

discharge provisions are codified at different sections of the Act, as they

are in Title VII, which supports the same conclusion reached in Nassar

that different causation standards apply.      See id. at ___, 133 S. Ct. at

2530–31. Compare Iowa Code § 216.6 (discriminatory discharge), with

id. § 216.11 (retaliatory discharge).      Moreover, as the Nassar Court

concluded under Title VII, we have emphasized that the ICRA’s

retaliation protections cannot be so low as to “immunize the complainant

from   discharge   for   past   or   present   inadequacies,   unsatisfactory

performance, or insubordination.” City of Hampton, 554 N.W.2d at 535–

36 (quoting Hulme, 480 N.W.2d at 43).

       We reject Haskenhoff’s contention that we are “blindly” following

federal law. First, we are following our own precedent: our cases have
                                     44

made clear that the correct causation standard for a retaliatory discharge

claim brought under section 216.11(2) of the ICRA is the significant-

factor standard.   See id. at 535; Hulme, 480 N.W.2d at 42.          We are

adhering to our consistent prior interpretations of the Act since 1992—

interpretations that have not been disturbed by the legislature—and the

doctrine of stare decisis.   Ackelson v. Manley Toy Direct, L.L.C., 832

N.W.2d 678, 688 (Iowa 2013) (relying on stare decisis and legislative

acquiescence to adhere to interpretation of the ICRA disallowing punitive

damages); see also In re Estate of Vajgrt, 801 N.W.2d 570, 574 (Iowa

2011) (“The rule of stare decisis ‘is especially applicable where the

construction placed on a statute by previous decisions has been long

acquiesced in by the legislature . . . .’ ” (quoting Iowa Dep’t of Transp. v.

Soward, 650 N.W.2d 569, 574 (Iowa 2002)).

      Predictability and stability are especially important in employment

law. Employers must comply with both state and federal law. Human

resources personnel and supervisors must apply myriad rules and

regulations in complex situations. Employers and prospective employers

should be able to rely on our precedents. We would generate significant

uncertainty if we overrule our own long-standing precedent to diverge

from settled federal interpretations. Uncertainty invites more litigation

and increasing costs for all parties.     An uncertain or costly litigation

environment inhibits job creation.

      The legislative history of the ICRA does not support the view that

we should depart from our long-standing practice of looking to federal

decisions to interpret the same or equivalent statutory language. While it
                                            45

is true some provisions of the ICRA predated Title VII, 11 the ICRA’s

retaliation provision was enacted after Title VII and closely tracked the

federal provision. 12         Accordingly, we appropriately look to federal

decisions for guidance.             Moreover, other states follow the federal

causation standard when interpreting their own state antiretaliation

statutes. 13 Congruity between state and federal requirements makes it

easier for employers and the bench and bar to apply and follow the law.


       11Iowa   had a statute predating Title VII, a criminal provision, which stated,
              1. Every person in this state is entitled to the opportunity for
       employment on equal terms with every other person. It shall be unlawful
       for any person or employer to discriminate in the employment of
       individuals because of race, religion, color, national origin or ancestry.
       However, as to employment such individuals must be qualified to
       perform the services or work required.
                ....
               3. Any person, employer, labor union or officer of a labor union
       or organization convicted of a violation of subsections one (1) or two (2) of
       this Act shall be punished by a fine not to exceed one hundred dollars or
       imprisonment in the county jail not to exceed thirty days.
1963 Iowa Acts ch. 330, § 1 (codified at Iowa Code § 735.6 (1966), subsequently
transferred to section 729.4 (1979)). This statute makes no mention of retaliation.
       12See   1965 Iowa Acts ch. 121, § 8 (codified at Iowa Code § 105A.8 (1966)). The
Iowa provision used the language in Title VII of the Civil Rights Act of 1964. Compare
id. § 8(2) (prohibiting retaliation “because such person has lawfully opposed any
practice forbidden under this Act, obeys the provisions of this Act, or has filed a
complaint, testified, or assisted in any proceeding under this Act”), with Civil Rights Act
of 1964, Pub. L. No. 88–352, § 704(a), 78 Stat. 241, 258 (codified as amended at 42
U.S.C. § 2000e-3(a) (prohibiting retaliation “because he has opposed any practice made
an unlawful employment practice by this title, or because he has made a charge,
testified, assisted, or participated in any manner in an investigation, proceeding, or
hearing under this title”).
       13For example, in Wholf v. Tremco, Inc., the Ohio Court of Appeals applied a
higher causation standard to a retaliation claim under its own civil rights statute. 26
N.E.3d 902, 908–09 (Ohio Ct. App. 2015). The Wholf court noted,
       [T]he [Ohio] General Assembly separated status-based discrimination
       claims from retaliation claims in separate subsections of R.C. 4112.02.
       And, despite Wholf’s argument to the contrary, Ohio’s anti-retaliation
       provision is nearly identical to Title VII’s anti-retaliation provision.
Id. at 908. The court also pointed out that “the ‘but-for’ standard articulated in Nassar
is not a new standard; it is a clarification of the standard that has been applied in
                                             46

       We    conclude      the    district    court’s   instruction     applying      the

motivating-factor causation standard was erroneous. In the marshaling

instruction for Count II, retaliatory discharge, the district court should

have instructed the jury that Haskenhoff must prove the protected

activity was a significant factor motivating the adverse action, consistent

with our precedent.

       D. Whether the District Court’s Jury Instruction Improperly

Defined “Adverse Employment Action.” Next, we address whether the

court’s   instruction      defining    an     adverse    employment        action    was

erroneous. HES argues the instruction reflected an inaccurate statement

of the law because it listed the following as examples of adverse action:

       reprimands or threats of reprimands, . . . false accusations
       or complaints, being investigated, being placed on a
       performance improvement plan, being placed on probation,
       or other actions which adversely affect or undermine the
_________________________
retaliation cases since the Supreme Court decided Price Waterhouse [v. Hopkins, 490
U.S. 228, 109 S. Ct. 1775 (1989),] in 1989.” Id. at 912; see also Asbury Univ. v. Powell,
486 S.W.3d 246, 255 (Ky. 2016) (noting that previous cases aligned with Nassar by
employing a substantial-factor test, in which the improper reason must be an “essential
ingredient” in the discharge (quoting First Prop. Mgmt. Corp. v. Zarebidaki, 867 S.W.2d
185, 187 (Ky. 1994))); Goree v. United Parcel Serv., Inc., 490 S.W.3d 413, 439 (Tenn. Ct.
App. 2015) (stating that Tennessee Act did not require sole causation, but required but-
for causation, following Nassar); Navy v. Coll. of the Mainland, 407 S.W.3d 893, 901
(Tex. Ct. App. 2013) (stating that unlike discrimination claims, retaliation claims
require higher standard of causation under Texas Act).
        Other courts recognize that a higher standard of causation is necessary for
retaliation claims, though they define the standard in varying ways. See Hensley v.
Botsford Gen. Hosp., No. 323805, 2016 WL 146355, at *6 n.1 (Mich. Ct. App. Jan. 12,
2016) (per curiam) (suggesting that under a significant-factor or but-for test, the result
would be the same); Thompson v. Dep’t of Corr., No. 319668, 2015 WL 1261539, at *5
(Mich. Ct. App. March 19, 2015) (per curiam) (“While there is authority that states an
employer is liable if discrimination is a motivating factor, retaliation cases continue to
require a showing that retaliation must be a significant factor.” (Citation omitted.));
Lacasse v. Owen, 373 P.3d 1178, 1183 (Or. Ct. App. 2016) (“[P]laintiff must prove that
defendant’s unlawful motive was a substantial factor in his termination, or, in other
words, that he would have been treated differently in the absence of the unlawful
motive.”); Allison v. Hous. Auth., 821 P.2d 34, 94–95 (Wash. 1991) (en banc) (declining
to adopt a standard imposing liability if retaliation affected motive “to any degree”).
                                   47
      position of the employee[,] . . . an employer seeking out
      negative feedback on an employee, or condoning or
      encouraging other employees to complain about her.

HES points out that no Iowa court has held these actions are “materially

adverse actions” for purposes of a retaliation claim under the ICRA.

      In order to prove retaliation, a plaintiff must show “the employer

took adverse employment action against him or her.” Boyle, 710 N.W.2d

at 750. We previously held that an adverse employment action is “an

action that detrimentally affects the terms, conditions, or privileges of

employment.    Changes in duties or working conditions that cause no

materially significant disadvantage to the employees are not adverse

employment actions.” Channon v. United Parcel Serv., Inc., 629 N.W.2d

835, 862 (2001).   “[A] wide variety of actions, some blatant and some

subtle, can qualify” as adverse employment actions. Id. at 863 (quoting

Bryson v. Chi. State Univ., 96 F.3d 912, 916 (7th Cir. 1996)). Adverse

action may include “disciplinary demotion, termination, unjustified

evaluations and reports, loss of normal work assignments, and extension

of probationary period.” Id. (quoting McKenzie v. Atl. Richfield Co., 906

F. Supp. 572, 575 (D. Colo. 1995)). We have also concluded that losing a

prestigious title or opportunity for advancement, physically punching an

employee, and reducing an employee from full- to part-time can qualify

as adverse employment actions. See id. at 865 (constructive demotion);

see also Estate of Harris, 679 N.W.2d at 678 (punching employee in
chest); City of Hampton, 554 N.W.2d at 536 (reduction of hours).

Whether an adverse employment action occurred “normally depend[ed]

on the facts of each situation.” Channon, 629 N.W.2d at 862 (quoting

Bryson, 96 F.3d at 916); see also Burlington N. & Santa Fe Ry. v. White,

548 U.S. 53, 71, 126 S. Ct. 2405, 2417 (2006) (“[M]aterially adverse

depends upon the circumstances of the particular case, and ‘should be
                                   48

judged from the perspective of a reasonable person in the plaintiff’s

position, considering “all the circumstances.” ’ ” (quoting Oncale v.

Sundowner Offshore Servs., Inc., 523 U.S. 75, 81, 118 S. Ct. 998, 1003

(1998))).

      The Supreme Court in Burlington Northern provided further

guidance on what qualifies as an adverse employment action in a

retaliation claim.   A female employee, Sheila White, was assigned to

operate a forklift, a desirable position because it was less arduous and

cleaner than other tasks. 548 U.S. at 57–58, 126 S. Ct. at 2409. After

White complained about a male employee harassing her, she was moved

off forklift duty and reassigned to a more physically demanding position.

Id. at 58, 126 S. Ct. at 2409.    White filed an EEOC complaint.       Id.

Shortly thereafter, her supervisor alleged she was insubordinate, and the

company suspended her without pay for thirty-seven days.       Id.   After

determining the complaint was unfounded, the company reinstated her

with backpay. Id.

      Deciding whether White had suffered an adverse employment

action, the Court declined to limit a retaliatory adverse action to only

those that “affect the terms and conditions of employment.” Id. at 64,

126 S. Ct. at 2412–13. This differed from the Court’s interpretation of

adverse action under the antidiscrimination provision, which only

prohibited “employment-related” adverse action. Id. at 63, 126 S. Ct. at

2412. This was because the antidiscrimination provision was intended

to promote equality in employment opportunities, and therefore, the

purpose would be achieved “were all employment-related discrimination

miraculously eliminated.” Id. But the Court recognized the retaliation

provision’s objective could not likewise be achieved by only prohibiting

employment-related harms because “[a]n employer can effectively
                                    49

retaliate against an employee by taking actions not directly related to his

employment or by causing him harm outside the workplace.” Id.

      Thus, the Court took a broader approach, allowing a plaintiff

alleging an adverse action was “materially adverse” to prove the action

would have “dissuaded a reasonable worker from making or supporting a

charge of discrimination.” Id. at 68, 126 S. Ct. at 2415 (quoting Rochon

v. Gonzales, 438 F.3d 1211, 1219 (D.C. Cir. 2006)).             The Court

elaborated,

             We speak of material adversity because we believe it is
      important to separate significant from trivial harms. Title
      VII, we have said, does not set forth “a general civility code
      for the American workplace.” An employee’s decision to
      report discriminatory behavior cannot immunize the
      employee from those petty slights or minor annoyances that
      often take place at work and that all employees experience.
      The antiretaliation provision seeks to prevent employer
      interference with “unfettered access” to Title VII’s remedial
      mechanisms. It does so by prohibiting employer actions that
      are likely “to deter victims of discrimination from
      complaining to the EEOC,” the courts, and their employers.
      And normally petty slights, minor annoyances, and simple
      lack of good manners will not create such deterrence.

Id. (citations omitted) (first quoting Oncale, 523 U.S. at 80, 118 S. Ct. at

1002; and then quoting Robinson v. Shell Oil Co., 519 U.S. 337, 346, 117
S. Ct. 843, 848 (1997)).

      The Court stressed that the “significance of any given act of

retaliation will often depend on the particular circumstances.” Id. at 69,

126 S. Ct. at 2415.        Under this standard, the Court held that

reassignment to a less desirable job and suspension was an adverse

employment action. Id. at 71, 126 S. Ct. at 2417. The Court noted,

      Common sense suggests that one good way to discourage an
      employee such as White from bringing discrimination
      charges would be to insist that she spend more time
      performing the more arduous duties and less time
      performing those that are easier or more agreeable.
                                    50

Id. at 70–71, 126 S. Ct. at 2416. Still, the Court took pains to recognize

that “reassignment of job duties is not automatically actionable” and will

“depend[] upon the circumstances of the particular case.” Id. at 71, 126

S. Ct. at 2417.     The Court also concluded that although White had

received backpay for the time of her suspension, it was still adverse

action because “White and her family had to live for 37 days without

income. . . . Many reasonable employees would find a month without a

paycheck to be a serious hardship.” Id. at 72, 126 S. Ct. at 2417. We

find Burlington Northern persuasive and adopt it as the appropriate

inquiry for evaluating an adverse employment action under the ICRA.

        Burlington Northern, however, does not rescue the jury instruction

here.    Even before Burlington Northern, we recognized that adverse

employment actions can occur in a variety of situations and “will

normally depend on the facts of each situation.” Channon, 629 N.W.2d

at 862 (quoting Bryson, 96 F.3d at 916). To the extent that Burlington

Northern broadened the inquiry to situations that do not directly affect

the terms or conditions of employment, the jury instruction captured this

sentiment, defining adverse action as “anything that might dissuade a

reasonable    person   from   making     or   supporting   an   allegation   of

discrimination or harassment.” But the instruction went too far when it

effectively told the jury that reprimands or performance improvement

plans constituted adverse action as a matter of law. Cases both before

and after Burlington Northern have consistently held that “a negative

performance review on its own does not constitute an ‘adverse

employment action’ . . . unless the review was relied on in making

promotion decisions about the employee.” Rebouche v. Deere & Co., 786

F.3d 1083, 1088 (8th Cir. 2015).
                                    51

       Prior to Burlington Northern, in Farmland Foods, when an employer

criticized an employee because of the slow pace of his work, we

determined that “occasional complaints voiced by an employer about

employee    performance   standards”     did   not   constitute   “substantial

evidence of a materially adverse employment action.”         672 N.W.2d at

742.   We explained that the employee’s internal transfer also did not

qualify as an adverse action because “minor changes in working

conditions that only amount to an inconvenience cannot support

discrimination.” Id. We added, “An employment action is not adverse

merely because the employee does not like it or disagrees with it.” Id.

       Similarly, in Powell v. Yellow Book USA, Inc., although an employee

received three written reprimands after filing a complaint with the Iowa

Civil Rights Commission, “she [could] point to no cut in her pay, no

reduction in her hours, nor any other significant change to the

conditions of her employment.”     445 F.3d 1074, 1079 (8th Cir. 2006).

The Eighth Circuit concluded that “formal criticisms or reprimands that

do not lead to a change in compensation, responsibilities, or other

benefits do not constitute an adverse employment action under Title VII.”

Id. In addition, “placing [an employee] on a ‘performance improvement

plan,’ without more, [does] not constitute an adverse employment

action.” Givens v. Cingular Wireless, 396 F.3d 998, 998 (8th Cir. 2005)

(per curiam).

       A majority of circuits addressing the question have held that a

reprimand or performance improvement plan, without more, cannot be

considered an adverse employment action under Burlington Northern.

See Rebouche, 786 F.3d at 1088; see also Jensen-Graf v. Chesapeake

Emp. Ins., 616 F. App’x 596, 598 (4th Cir. 2015) (per curiam) (concluding

denial of professional development course because employee was on
                                    52

performance improvement plan was not adverse action under Burlington

Northern); Barnett v. Athens Reg’l Med. Ctr. Inc., 550 F. App’x 711, 715

(11th Cir. 2013) (per curiam) (“[T]he negative performance evaluation

would not, by itself, have deterred a reasonable person from making a

charge of discrimination, especially in this case, where such an

evaluation, by itself, would not impact his salary or job status.”); Fox v.

Nicholson, 304 F. App’x 728, 733 (10th Cir. 2008) (per curiam) (applying

Burlington Northern under Americans with Disabilities Act and finding

that when employee had lower scores and negative comments on reviews

but was still in satisfactory range, no adverse employment action);

Vaughn v. Louisville Water Co., 302 F. App’x 337, 348 (6th Cir. 2008)

(stating lower performance reviews may only be adverse actions if they

“significantly impact an employee’s wages or professional advancement”);

James v. Metro. Gov’t of Nashville, 243 F. App’x 74, 79 (6th Cir. 2007)

(concluding poor evaluations not adverse action unless “markedly worse

than earlier ones” and impacted “professional advancement” because

they would not have dissuaded a reasonable employee from filing a Title

VII claim).
      Under the facts of this case, the performance improvement plan,
alone, did not cause Haskenhoff material harm either within the
workplace or outside of it.   Haskenhoff was never suspended, with or
without pay. See Burlington N., 548 U.S. at 72, 126 S. Ct. at 2417. Her
work hours were not reduced, nor was her pay cut. The performance
improvement plan did not affect her professional advancement. See id.
at 69, 126 S. Ct. at 2416. Her duties and status remained unchanged,
both within the workplace and outside of it.      Under her performance
improvement plan, Haskenhoff was only required to abide by rules
applicable to others in her position. See Fischer v. Andersen Corp., 483
                                             53

F.3d    553,    556–58      (8th    Cir.    2007)     (holding     that   placement       on
performance improvement plan was not a constructive discharge when
employee acknowledged that plan requirements “were largely fair and in
conformance with what one would expect from an engineer”). 14
Moreover, Finke and Wendland assured Haskenhoff that if she wanted
any revisions, the plan would be changed to reflect her concerns. The
timing of the plan and allegations giving rise to it were suspect, but these
factors were for the jury to weigh under a correct instruction.                          The
district court erred by instructing the jury the performance improvement
plan was an adverse employment action as a matter of law.
       “We have on a number of occasions found instructions that unduly
emphasized certain evidence were flawed and required reversal.” Alcala,
880 N.W.2d at 710 (quoting Burkhalter v. Burkhalter, 841 N.W.2d 93,
106 (Iowa 2013)).         Jury instructions should not comment on specific
evidence or erroneously advise the jury “that certain facts are undisputed
when there is conflicting evidence on the question.”                          Locksley v.
Anesthesiologists of Cedar Rapids, P.C., 333 N.W.2d 451, 455 (Iowa
1983); see also 89 C.J.S. Trial § 581, at 36 (2012) (“[I]mpermissible
comments in jury instructions include those where the court assumes
the truth of a material controverted fact or . . . withdraws some pertinent
evidence from the jury’s consideration.”). For example, in Locksley, we
upheld a district court’s refusal to give a jury instruction that defendant
was competent as a matter of law because his competence was disputed,

       14The    performance improvement plan stated Haskenhoff must abide by the
following: (1) not “walk[] off the job and abandon [her] job responsibilities”; (2) not “us[e]
vulgar language towards another”; (3) not “send[] hostile, disrespectful, or inappropriate
emails to employees”; (4) not “post[] comments about the company or other employees
on a social network”; (5) go through the chain of command rather than “address[ing] the
problem [her]self”; (6) attend work during the “core work hours of 8AM to 4PM” and
“approv[e] ahead of time” coming in or leaving early; (7) not leave the plant “during the
work day for non-work related reasons”; and (8) approve paid time off “ahead of time.”
                                     54

and the proposed instruction would have taken a factual determination
from the jury. 333 N.W.2d at 455.
      Instruction No. 30 provided that certain activities constituted

adverse employment actions as a matter of law.                 The list included

matters that no court in Iowa—or the Iowa Civil Rights Commission or

EEOC,    for   that   matter—has     concluded         constitute   an   adverse

employment action as a matter of law. See EEOC Enforcement Guidance

on   Retaliation   and   Related    Issues     (Aug.     25,   2016),    https://

www.eeoc.gov/laws/guidance/retaliation-guidance.cfm#_ftnref113.               By

stating certain instances of conduct that occurred in this case were

examples of adverse employment actions (and thus adverse action as a

matter of law), the instruction took that factual determination away from

the jury and relieved Haskenhoff of her burden of proof on that element

of the retaliation claim.   See Anderson, 620 N.W.2d at 267 (providing

examples of breaches of duty of care in negligence action takes

determination away from the jury because jury must be the one to apply

the legal standard to the facts).         We conclude the adverse-action

instruction misstated the law and unduly emphasized certain evidence.

This prejudicial error requires a new trial.

      E. Whether the Constructive Discharge Instruction Misstated

the Law. We next address the district court’s instruction on constructive

discharge. “Constructive discharge exists when the employer deliberately

makes an employee’s working conditions so intolerable that the employee

is forced into an involuntary resignation.”               Van Meter Indus. v.

Mason City Human Rights Comm’n, 675 N.W.2d 503, 511 (Iowa 2004)

(quoting First Judicial Dist. Dep’t of Corr. Servs. v. Iowa Civil Rights

Comm’n, 315 N.W.2d 83, 87 (Iowa 1982)). The policy behind constructive

discharge is simple: an employer “should not be able to accomplish
                                    55

indirectly what the law prohibits directly.”    1 Barbara T. Lindemann

et al., Employment Discrimination Law 21-33 (5th ed. 2012) [hereinafter

Lindemann].

      In an attempt to avoid liability, an employer may refrain from
      actually firing an employee, preferring instead to engage in
      conduct causing him or her to quit.           The doctrine of
      constructive discharge addresses such employer-attempted
      “end runs” around wrongful discharge and other claims
      requiring employer-initiated terminations of employment.

Balmer v. Hawkeye Steel, 604 N.W.2d 639, 641 (Iowa 2000) (quoting

Turner v. Anheuser-Busch, Inc., 876 P.2d 1022, 1025 (Cal. 1994)

(en banc)). Employees often allege discriminatory constructive discharge

because it allows recovery of backpay. Van Meter Indus., 675 N.W.2d at

510–11. “[T]rivial or isolated acts of the employer are not sufficient to

support a constructive discharge claim.”       Id. at 511.    “Rather, the

‘working conditions must be unusually “aggravated” or amount to a

“continuous pattern” before the situation will be deemed intolerable.’ ”

Id. (quoting Haberer v. Woodbury County, 560 N.W.2d 571, 576 (Iowa

1997)). Constructive discharge is not its own cause of action, but must

be asserted under a common law or statutory framework, such as the

Iowa Civil Rights Act.   See Balmer, 604 N.W.2d at 642 (outlining that

constructive discharge can be a form of wrongful discharge or asserted

under statute allowing recovery). As such, it can either be alleged under

a discrimination claim (“The employer made my working conditions

intolerable by discriminating on the basis of an unfair characteristic.”),

or as an adverse action under a retaliation theory (“The employer

retaliated against me by making my working conditions intolerable.”). As

is the case here, “[c]onstructive discharge, like any other discharge, is an

adverse employment action that will support an action for unlawful
                                    56

retaliation.” West v. Marion Merrell Dow, Inc., 54 F.3d 493, 497 (8th Cir.

1995).

      HES asserts three errors in the constructive discharge instruction.

First, HES contends that it was error to instruct the jury, “The employer

need not really want the employee to quit.”      Second, HES argues the

district court erred by inserting a subjective standard into the definition

of constructive discharge. Third, HES assigns error to the district court’s

refusal to allow an instruction stating “conditions will not be considered

intolerable unless the employer has been given a reasonable chance to

resolve the problem.”

      1. Employer need not want the employee to quit.         We conclude

there was no error in the district court’s instruction on the principle that

“[t]he employer need not really want the employee to quit.” In Van Meter

Industries, Jane Sires quit her job with Van Meter Industries after being

passed over for a promotion and “relegated to the operations side of the

business where there was no reasonable likelihood of advancement into a

manager position” because of her sex.        675 N.W.2d at 511.         Sires

conceded she did not think Van Meter Industries “really wanted her to

quit.” Id. at 512. We stated,

      Although it may be undisputed that VMI wanted Sires to
      stay on the job, this fact does not preclude a finding that the
      company deliberately rendered Sires’ working conditions so
      intolerable that a reasonable employee in Sires’ position
      would resign.

Id.   It is enough “that the employee’s resignation was a reasonably

foreseeable consequence of the insufferable working conditions created

by the employer.” Id. We reversed the district court’s finding there was

not substantial evidence Sires was constructively discharged. Id. at 513.

Pursuant to Van Meter Industries, the jury was correctly instructed the
                                   57

employer need not really want the employee to quit to claim constructive

discharge.

      2. Objective standard for constructive discharge. HES next asserts

error because the constructive discharge instruction wrongly directed the

jury to consider a subjective standard.       The instruction stated, “The

employee must show that she was subjected to sexual harassment or

retaliation [that] made her believe there was no chance for fair treatment

at Homeland.”    (Emphasis added.)       We conclude it should have said,

“made her reasonably believe.”

      The test for constructive discharge is objective, evaluating whether

a reasonable person in the employee’s position would have been

compelled to resign and whether an employee reasonably believed there

was no possibility that an employer would respond fairly.      Id. at 511.

“The issue thus is not how plaintiff felt but whether a reasonable person

in his position would have felt the same way.” Reihmann v. Foerstner,

375 N.W.2d 677, 683 (Iowa 1985).

      “[W]orking conditions must be unusually ‘aggravated’ or amount to

a ‘continuous pattern’ before the situation will be deemed intolerable.”

Van Meter Indus., 675 N.W.2d at 511 (quoting Haberer, 560 N.W.2d at

576). In Haberer, a police officer resigned after he was placed on a paid,

eighteen-month suspension followed by an unpaid thirty-day suspension

pending a criminal investigation against him. 560 N.W.2d at 573. When

the officer returned to duty, he was reassigned to office work. Id. After

receiving notice his wages would be garnished for unpaid child support,

the officer resigned. Id. We held, as a matter of law, no constructive

discharge had occurred.    Id. at 578.    Haberer’s reassignment to office

work was not “(1) a change in grade, (2) inconsistent with or outside the

scope of his job description, (3) a decrease in pay or prestige, (4)
                                      58

impossible to do, or (5) anything beyond a mere ‘difficulty’ because of a

lack of ‘experience.’ ” Id. at 577. We noted,

       Under the cases, an employee cannot simply “quit and sue,”
       claiming he or she was constructively discharged. The
       conditions giving rise to the resignation must be sufficiently
       extraordinary and egregious to overcome the normal
       motivation of a competent, diligent, and reasonable employee
       to remain on the job to earn a livelihood and to serve his or
       her employer. . . .

             . . . Every job has its frustrations, challenges, . . . and
       disappointments; these inhere in the nature of work. [An
       employee is not] guaranteed a working environment free of
       stress.

Id. at 575–76 (alteration in original) (quoting Turner, 876 P.2d at 1026–

27).

       The first paragraph of the constructive discharge instruction

focused on whether the conditions were “intolerable so that the employee

reasonably feels forced to quit.” But the second paragraph implied that

“intolerable” conditions equated to the employee’s subjective belief there

was “no chance for fair treatment at Homeland.” This was not a correct

statement of law. See Van Meter Indus., 675 N.W.2d at 511–12 (stating

that constructive discharge results when “employee has no recourse
within the employer’s organization or ‘reasonably believes there is no

chance for fair treatment’ ” (emphasis added) (citation omitted) (quoting

Kimzey v. Wal-Mart Stores, Inc., 107 F.3d 568, 574 (8th Cir. 1997))).

       Nevertheless, omitting “reasonably” in one sentence of the

constructive discharge instruction was harmless when the instructions

are read as a whole. “[W]e look to the instructions as a whole and do not

require perfection.”   Rivera, 865 N.W.2d at 902.        Another instruction

stated,
                                    59
                          INSTRUCTION NO. 34
           INTOLERABLE WORKING CONDITIONS – DEFINED
            Working conditions are intolerable if a reasonable
      person in the plaintiff’s situation would have deemed
      resignation the only reasonable alternative.
             The conditions giving rise to the resignation must be
      sufficiently extraordinary and egregious to overcome the
      normal motivation of a competent, diligent and reasonable
      employee to remain on the job to earn a livelihood and to
      serve his or her employer.
             The adverse working conditions must be unusually
      “aggravated” or amount to a “continuous pattern” before the
      situation will be deemed intolerable. A single, trivial or
      isolated act is insufficient to support a constructive
      discharge claim.

The instructions on constructive discharge mentioned the standard of

“reasonable belief” or “reasonable employee” no less than five times. In

addition, the sentence immediately following the offending statement in

the marshaling instruction clarified the objective standard, elaborating

that the employee must “reasonably believe” there is no possibility of fair

treatment. Reading the instructions together “leads to the inevitable

conclusion the jury could not have misapprehended the issue” on the

constructive discharge objective standard.       Moser v. Stallings, 387

N.W.2d 599, 605 (Iowa 1986).
      3. Reasonable chance to resolve the problem. HES raises a final
point that the district court should have given its requested instruction
stating that “conditions cannot be considered intolerable unless the
employer has been given a reasonable chance to resolve the problem.”
We conclude HES’s requested instruction was a correct statement of the
law and was not adequately embodied in other instructions. Therefore,
on this record, it was reversible error for the district court to refuse to
give that instruction.
      In Van Meter Industries, we squarely decided that an employee
must give an employer “a reasonable chance to resolve the problem.”
                                         60

675 N.W.2d at 511. Sires reported to one of her superiors and to the
director of human resources before resigning that she felt she “ ‘had
reached [the] highest level [she] was going to be allowed to go’ and that
she was considering resigning.” Id. at 508 (alterations in original). Her
superior asked her to “wait,” and the human resources director told her
to “hang in there.” Id. A week passed with no response. Id. Sires then
received a phone call in which she was given “vague reassurance[s]” and
informed that if the individual who made the promotion decision “had it
to do over again, he would still promote [the male employee] over her.”
Id. Sires resigned two days later, and Van Meter Industries accepted her
resignation without protest. Id. The commission found that Sires had
been constructively discharged. Id. at 509. The district court reversed,
believing “Sires had not given VMI ‘any opportunity to work on the
problem before she quit,’ ” among other reasons. 15 Id. at 510.
       On review, we began by noting that “conditions will not be

considered intolerable unless the employer has been given a reasonable

chance to resolve the problem.”          Id. at 511.     We then tempered this

statement: “On the other hand, an employee need not stay if he or she

reasonably believes there is no possibility the employer will respond

fairly.” Id. Examining Sires’ constructive discharge claim, we observed

she gave Van Meter Industries a reasonable opportunity to remedy the

discrimination. Id. at 513. Although she waited only one month before

       15It   has been suggested our decision in Van Meter Industries was not
precedential on this point. However, whether Sires could recover without giving the
employer a “reasonable opportunity to resolve the problem” was a fighting issue. That
was the basis for the district court’s reversal of the commission’s decision. See
Van Meter Indus., 675 N.W.2d at 510. We recognized the defendant employer “claim[ed]
Sires failed to give the company an adequate opportunity to address her grievances and
so cannot rely on the constructive discharge doctrine.” Id. at 513. We addressed that
claim, spending almost a full page on the discussion. Id.; see also Ackelson, 832
N.W.2d at 688 (“We are slow to depart from stare decisis and only do so under the most
cogent circumstances.”).
                                      61

quitting, Sires had a reasonable belief her employer would not resolve the

problem:

             In the weeks between Meyers’ promotion and Sires’
       resignation the company not only took no action to
       investigate Sires’ complaints, it gave no indication that it
       intended to conduct an inquiry. The company’s indifference
       was further demonstrated by the fact Sires was referred to
       the individual who made the discriminatory promotion
       decision to seek a resolution of her grievance.        This
       individual, rather than assuring Sires that appropriate and
       prompt remedial action would be taken, informed her that he
       would make the same decision again if he had it to do over
       and reaffirmed that the company saw her future in
       operations.

Id. (citation omitted).   Because Sires demonstrated a reasonable belief

her employer would not resolve the problem, we concluded,

       [W]e cannot say under the specific circumstances of this
       particular case that she acted precipitously. A review of the
       evidence shows this case is not one where the company did
       not have sufficient time to rectify its wrong. . . . Rather, this
       case presents a situation where the company, when given
       the opportunity, chose to perpetuate its discriminatory
       practices.

Id.
       We supported our decision by citing Iowa precedent and precedent

from the Eighth Circuit.      See id. at 511 (citing Breeding v. Arthur J.

Gallagher & Co., 164 F.3d 1151, 1159 (8th Cir. 1999), abrogated in part

on other grounds by Torgerson v. City of Rochester, 643 F.3d 1031, 1043

(8th Cir. 2011); First Judicial Dist. Dep’t of Corr. Servs., 315 N.W.2d at

89).   In First Judicial District Department of Correctional Services, we

denied recovery on a race and disability constructive discharge claim

when the department of corrections issued an order restricting an

African-American blind counselor’s access to the jail due to a security

risk. 315 N.W.2d at 85. The employee quit one day later. Id. We held

the employee “was precipitous; she overreacted.” Id. at 89. She “failed to
                                      62

make a good faith effort to determine whether the restriction from the jail

would render her employment as onerous as she now contends,” and the

record contained nothing showing the restriction was permanent.             Id.

Her   “immediate   resignation     ...   deprived   [the   employer]   of   the

opportunity to investigate and remedy the situation.”           Id.; see also

Haberer, 560 N.W.2d at 577 (denying recovery based in part on

employee’s “rash and intemperate” act of resigning); cf. Johnson v. Dollar

Gen., 880 F. Supp. 2d 967, 998 n.6 (N.D. Iowa 2012) (“[T]he Iowa

Supreme Court has observed that ‘conditions will not be considered

intolerable [so as to constitute constructive discharge] unless the

employer has been given a reasonable chance to resolve the problem,’

and Johnson gave Dollar General and Williams no such opportunity

before resigning.” (alteration in original) (citation omitted) (quoting

Van Meter Indus., 675 N.W.2d at 511)), aff’d, 508 F. App’x 587 (8th Cir.

2013).

      The Eighth Circuit has held that to demonstrate constructive

discharge, an employee must show that a “reasonable person would find

the working conditions intolerable.” Phillips v. Taco Bell Corp., 156 F.3d

884, 890 (8th Cir. 1998).        “Such intolerability . . . is judged by an

objective standard, not the plaintiff’s subjective feelings.”    Id.   “To act

reasonably, an employee has an obligation not to assume the worst and

not to jump to conclusions too quickly.”       Tidwell v. Meyer’s Bakeries,

Inc., 93 F.3d 490, 494 (8th Cir. 1996). Thus, “[a]n employee who quits

without giving [the] employer a reasonable chance to work out a problem

has not been constructively discharged.” Id. Indeed, “passivity in the

face of working conditions alleged to be intolerable is often inconsistent

with the allegation.” Lindale v. Tokheim Corp., 145 F.3d 953, 955 (7th

Cir. 1998). But “[i]f an employee quits because she reasonably believes
                                     63

there is no chance for fair treatment, there has been a constructive

discharge.” Kimzey, 107 F.3d at 574.

      Peggy    Kimzey,   an    employee   at   Wal-Mart,   complained   to

management several times about repeated harassment by her supervisor.

Id. at 571.   Management told her they were aware of the problem but

took no action to investigate or follow up on the complaint. Id. Even

after Kimzey resigned because of her supervisor’s continued conduct, her

manager “did not indicate that he would investigate her complaints or

take any other action required by Wal-Mart’s open door policy.” Id. at

572. The Eighth Circuit held that “[a] reasonable jury could find that the

continuing    harassment      and   management’s   indifference   rendered

Kimzey’s working conditions intolerable and forced her to quit.” Id. at

574–75.   It highlighted the evidence that members of Wal-Mart knew

Kimzey was being harassed, but “generally ignored those complaints.”

Id. at 574. Because Kimzey demonstrated a reasonable belief there was

no chance of fair treatment at Wal-Mart, the Eighth Circuit found no

error in submitting the constructive discharge claim to the jury. Id. at

575; see also Sanders v. Lee Cty. Sch. Dist. No. 1, 669 F.3d 888, 894 (8th

Cir. 2012) (finding discriminatory constructive discharge claim supported

when employee reasonably believed no chance for fair treatment because

employer failed to respond to repeated requests for information about

reassignment); Henderson v. Simmons Foods, Inc., 217 F.3d 612, 617

(8th Cir. 2000) (affirming constructive discharge claim when employee

“essentially is left with no choice other than the termination of her

employment” due to employer’s failure to investigate or respond to

knowledge of harassment).

      By contrast, in Alvarez v. Des Moines Bolt Supply, Inc., the Eighth

Circuit held the district court properly granted summary judgment on a
                                            64

constructive discharge claim when an employee failed to notify the

employer of retaliatory harassment. 626 F.3d 410, 418 (8th Cir. 2010).

Veronica Alvarez notified her employer of inappropriate sexual conduct

by her coworker. Id. at 413–14. Her employer investigated the claims

and suspended the harassing coworker.                 Id. at 415.    Other coworkers

then began to harass her in retaliation for her complaint. Id. However,

Alvarez       failed   to   notify   the   employer    about   the    postsuspension

harassment before she resigned.              Id.   The Eighth Circuit concluded

Alvarez had given her employer “no reasonable opportunity to remedy the

problem.” Id. at 419. Alvarez argued she should be excused from the

notice requirement because her prior complaint showed she “had no

chance for fair treatment if she complained again about harassment.” Id.

But “[p]art of an employee’s obligation to be reasonable,” the court held,

“is an obligation not to assume the worst, and not to jump to conclusions

too fast.”      Id. (quoting Smith v. Goodyear Tire & Rubber Co., 895 F.2d

467, 473 (8th Cir. 1990)).           Thus, her prior complaint “did not excuse

Alvarez from at least notifying DMB about the continued misconduct to

see how the company would respond.” Id.

       Other cases have similarly held, unless the employee demonstrates

a reasonable belief there is no chance for fair treatment, he or she must

give the employer a chance to respond before resigning due to retaliatory

conduct. 16       See Phillips, 156 F.3d at 891 (determining employee not

       16Ithas been suggested giving the employer a reasonable chance to resolve the
problem “is another effort to transplant” the Faragher–Ellerth defense. However, this
assertion overlooks that the Faragher–Ellerth defense has already been held to apply to
certain instances of constructive discharge. See Pa. State Police v. Suders, 542 U.S.
129, 141, 124 S. Ct. 2342, 2351 (2004) (stating absent a “tangible employment action,”
the defense “is available to the employer whose supervisors are charged with
harassment” resulting in constructive discharge); see also id. at 150–51 & n.10, 124
S. Ct. at 2356 & n.10 (noting Eighth Circuit and other caselaw analyzing whether
“employee’s decision to resign was reasonable under the circumstances” specifically
                                          65

constructively discharged when manager retaliated against her by

speaking to her in “nasty” tone because she “fail[ed] to give Taco Bell a

fair opportunity to demonstrate that it had remedied the situation”);

Coffman v. Tracker Marine, L.P., 141 F.3d 1241, 1247–48 (8th Cir. 1998)

(holding    employee     was     not   constructively    discharged      when    she

complained about retaliation but failed to give the employer’s method for

solving the problem a chance); Tidwell, 93 F.3d at 496 (concluding

employee who quit the day after seeing allegedly retaliatory schedule

change not constructively discharged because he failed to give employer

“an opportunity to explain the situation or remedy it”).               Such a rule

recognizes that “a reasonable waiting period is inversely related to the

severity of the situation,” Watson v. Heartland Health Labs., Inc., 790

F.3d 856, 864 (8th Cir. 2015), and there may be cases of severe

harassment or retaliation when it is reasonable for the employee to

resign immediately. It also acknowledges there may be times when the

_________________________
consider whether the employer was given “a chance to respond” (first quoting Suders v.
Easton, 325 F.3d 432, 462 (3d Cir. 2003); and then quoting Jaros v. LodgeNet, Entm’t
Corp., 294 F.3d 960, 965 (8th Cir. 2002))).
         Principles of deterrence and avoidance undergird theories of employment
liability. See Sara Kagay, Applying the Ellerth Defense to Constructive Discharge: An
Affirmative Answer, 85 Iowa L. Rev. 1035, 1061 (2000) (“The purpose of Title VII is to
encourage anti-harassment policies, promote conciliation, and prevent harassment.”).
These principles are evident in both the doctrine of constructive discharge and the
Faragher–Ellerth defense. See Shari M. Goldsmith, The Supreme Court’s Suders
Problem: Wrong Question, Wrong Facts Determining Whether Constructive Discharge Is a
Tangible Employment Action, 6 U. Pa. J. Lab. & Emp. L. 817, 835 (2004) (“By
emphasizing the employee’s obligation to seek redress and the employer’s duty to avoid
harm, the dominant approach to constructive discharge goes to the heart of the Court’s
Ellerth/Faragher motivations and purpose.”).
       If the victim could have avoided harm, no liability should be found
       against the employer who had taken reasonable care, and if damages
       could reasonably have been mitigated no award against a liable employer
       should reward a plaintiff for what her own efforts could have avoided.
Faragher, 524 U.S. at 807, 118 S. Ct. at 2292.
                                      66

employee can demonstrate a complaint would be fruitless, such as when

the prescribed method of recourse is through the alleged harasser or

when an employer has failed to respond to previous instances of

harassment. See, e.g., Van Meter Indus., 675 N.W.2d at 513 (“Sires was

referred to the individual who made the discriminatory promotion

decision to seek a resolution of her grievance.”).

      “[A]ntidiscrimination policies are better served when the employee

and employer attack discrimination within their existing employment

relationship, rather than when the employee walks away and then later

litigates whether his employment situation was intolerable.”       Poland v.

Chertoff, 494 F.3d 1174, 1184 (9th Cir. 2007). We empathize with the

fact that in many cases coming forward with allegations of retaliation

may seem difficult. See Cathy Shuck, That’s It, I Quit: Returning to First

Principles in Constructive Discharge Doctrine, 23 Berkeley J. Emp. & Lab.

L. 401, 429–30 (2002) (“The most frequently cited reason for failing to

report harassment is fear of negative outcomes—fear that the employee

will lose her job, not be believed, or ‘simply because it will not help [her]

situation[].’ ” (alterations in original) (quoting Theresa M. Beiner, Sex,

Science and Social Knowledge: The Implications of Social Science Research

on Imputing Liability to Employers for Sexual Harassment, 7 Wm. & Mary

J.   Women    &   L.   273,   317   (2001))).   But   countervailing   policy

considerations counsel us the burden placed on the employee is

reasonable. A preeminent treatise on employment law explains,

            Courts generally require that the employee must give
      higher levels of management the opportunity to correct an
      adverse situation before quitting and claiming constructive
      discharge. The evident purpose of the requirement is to
      allow the employer as an entity—as opposed to, for example,
      an individual (and perhaps aberrational) supervisor—to
      redress the problem.     However, to avoid a finding of
      constructive discharge, the employer’s response must be
                                       67
      adequate; the employee need              not    suffer     prolonged
      harassment or discrimination.

Lindemann, at 21-44 to 21-45 (footnotes omitted).                 Moreover, an

employee can escape the requirement of coming forward by alleging there

would have been no “chance for fair treatment” in the face of a

complaint. Kimzey, 107 F.3d at 574.

      Courts     have   consistently    required     “something        more”   for

constructive discharge claims than for ordinary discrimination or

retaliation.   Pa. State Police v. Suders, 542 U.S. 129, 147, 124 S. Ct.
2342, 2354 (2004).      Constructive discharge occurs when the working

conditions deteriorate, as a result of discrimination or retaliation, “to the

point that they become ‘sufficiently extraordinary and egregious to

overcome the normal motivation of a competent, diligent, and reasonable

employee to remain on the job to earn a livelihood and to serve his or her

employer.’ ”   Brooks v. City of San Mateo, 229 F.3d 917, 930 (9th Cir.

2000) (quoting Turner, 876 P.2d at 1026).            These discriminatory or

retaliatory actions are best handled within the employment relationship.

Poland, 494 F.3d at 1184. The employee can recover for any additional

acts of harassment suffered until he resigns. See Green v. Brennan, 578

U.S. ___, ___, 136 S. Ct. 1769, 1782 (2016) (holding the claim of

constructive discharge does not accrue until an employee resigns).

      The First, Fifth, Seventh, Eighth, Tenth, and Eleventh Circuits

consider whether the employee reasonably gave the employer an

opportunity to respond before claiming constructive discharge. See, e.g.,

EEOC v. Kohl’s Dep’t Stores, Inc., 774 F.3d 127, 134 (1st Cir. 2014)

(holding employee failed to meet “reasonable person” element when her

“choice to resign was ‘grossly premature, as it was based entirely on [her]

own    worst-case-scenario     assumption’ ”       (alteration    in    original));
                                   68

Trierweiler v. Wells Fargo Bank, 639 F.3d 456, 461 (8th Cir. 2011) (“We

have consistently recognized that an employee is not constructively

discharged if she ‘quits without giving [her] employer a reasonable

chance to work out a problem.’ ” (alteration in original) (quoting

Brenneman v. Famous Dave’s of Am., Inc., 507 F.3d 1139, 1144 (8th Cir.

2007)); Aryain v. Wal-Mart Store Texas LP, 534 F.3d 473, 482 (5th Cir.

2008) (concluding employee could not recover because she “assumed the

worst and made no effort to allow Wal-Mart the opportunity to remedy

the problems she identified”); Barker v. YMCA of Racine, 18 F. App’x 394,

399 (7th Cir. 2001) (“Employees who quit without giving their employer a

reasonable chance to resolve a problem have not been constructively

discharged. Here, Ms. Barker did not try to resolve her work problems—

she merely walked away from her job without notice . . . .”     (Citation

omitted.)); Yearous v. Niobrara Cty. Mem’l Hosp., 128 F.3d 1351, 1357

(10th Cir. 1997) (holding no constructive discharge when plaintiffs only

waited brief time before resigning and “unreasonably refused to explore

any option short of resignation”); Kilgore v. Thompson & Brock Mgmt.,

Inc., 93 F.3d 752, 754 (11th Cir. 1996) (“A constructive discharge will

generally not be found if the employer is not given sufficient time to

remedy the situation.”); Bozé v. Branstetter, 912 F.2d 801, 804–05 (5th

Cir. 1990) (per curiam) (concluding employee was not constructively

discharged when he failed to pursue internal grievance procedures); see

also DeWalt v. Davidson Serv./Air, Inc., 398 S.W.3d 491, 501 (Mo. Ct.

App. 2013) (“Reasonableness requires an employee not to assume the
                                          69

worst, and not to jump to conclusions too quickly.”). 17 As Lindemann

states,

       The general rule is that a reasonable employee must remain
       and fight discrimination on the job. Indeed, even when the
       employee is faced with what he anticipates will be an
       intolerable job environment, courts generally hold that the
       employee should not quit precipitously, but rather should
       remain to see whether those fears in fact do materialize.
       Moreover, an employee cannot simply speculate that
       intolerable conditions will develop, that an impending
       discharge will occur, or that management will ignore the
       problem.

Lindemann, at 21-41 to 21-42 (footnotes omitted).
       Haskenhoff failed to establish as a matter of law that it would have

been fruitless to give HES management more time to respond. To the

contrary, HES was actively engaged in responding to her complaint when

she quit.     It was for the jury to decide, under proper instructions,

whether she jumped the gun, or rather, was constructively discharged. A

reasonable employee has “an obligation not to assume the worst and not

to jump to conclusions too quickly.”             Brenneman, 507 F.3d at 1144

(quoting Duncan v. Gen. Motors Corp., 300 F.3d 928, 935 (8th Cir. 2002)).



       17In Missouri, a previous case held an employee did not have to allow a
reasonable opportunity to respond before claiming constructive discharge. See Pollock
v. Wetterau Food Distribution Grp., 11 S.W.3d 754, 761, 765–66 (Mo. Ct. App. 1999).
That case has been undermined by later cases holding a constructive discharge does
not occur “without giving the employer a reasonable chance to resolve the problem.”
DeWalt, 398 S.W.3d at 501; see also Gamber v. Mo. Dep’t of Health & Senior Servs., 225
S.W.3d 470, 479 (Mo. Ct. App. 2007). Other states considering whether an employee
gave the employer a reasonable opportunity to respond include West Virginia,
Nebraska, and Minnesota. Waldron v. Lyman Lumber Co., No. A10–997, 2011 WL
206175, at *3 (Minn. Ct. App. Jan. 25, 2011); Gavin v. Rogers Tech. Servs., Inc., 755
N.W.2d 47, 56 (Neb. 2008); Anderson v. First Century Fed. Credit Union, 738 N.W.2d 40,
50–51 (S.D. 2007); Ford Motor Credit Co. v. W. Va. Human Rights Comm’n, 696 S.E.2d
282, 296 (W. Va. 2010) (per curiam); see also Charles v. Regents of N.M. State Univ., No.
28,825, 2010 WL 4703506, at *1 (N.M. Ct. App. Nov. 4, 2010) (noting that New Mexico
courts consider “whether an employer had an opportunity to or attempted to resolve the
problem” as a factor when evaluating constructive discharge).
                                          70

“The proper focus is on whether the resignation was coerced, not whether

it was simply one rational option for the employee.”                    Haberer, 560

N.W.2d at 575 (quoting Turner, 876 P.2d at 1026).

       Instruction No. 33 omitted language requested by HES and

required under our precedent stating the employee must give the

employer “a reasonable chance to resolve the problem.”                      Van Meter

Indus., 675 N.W.2d at 511. That omission constituted prejudicial error.

       F. Whether the Expert Testimony of Dr. Fitzgerald Should

Have Been Excluded. Because the issue is likely to arise on remand, we

will discuss whether the district court abused its discretion by allowing

the testimony of Dr. Fitzgerald.         Iowa Rule of Evidence 5.702 (2014)18

provides,

       If scientific, technical, or other specialized knowledge will
       assist the trier of fact to understand the evidence or to
       determine a fact in issue, a witness qualified as an expert by
       knowledge, skill, experience, training, or education may
       testify thereto in the form of an opinion or otherwise.

HES argues expert testimony by Dr. Fitzgerald should not have been

admitted because it “invade[s] the province of the court to determine the

applicable law and to instruct the jury as to that law.”                 In re Det. of

Palmer, 691 N.W.2d 413, 419 (Iowa 2005) (quoting Torres v. County of

Oakland, 758 F.2d 147, 150 (6th Cir. 1985)), overruled on other grounds

by Alcala, 880 N.W.2d at 708 n.3.                    HES specifically objects to

Dr. Fitzgerald’s testifying to “the requirements and standards for an

       18Iowa   Rule of Evidence 5.702 has since been amended and now reads,
       A witness who is qualified as an expert by knowledge, skill, experience,
       training, or education may testify in the form of an opinion or otherwise
       if the expert’s scientific, technical, or other specialized knowledge will
       help the trier of fact to understand the evidence or to determine a fact in
       issue.
Iowa R. Evid. 5.702 (2017).
                                    71

effective sexual harassment program and whether [HES]’s harassment

prevention   and   remediation    program   was   consistent   with   those

standards.” HES also objects to Dr. Fitzgerald’s testimony about what a

reasonable company would do. Haskenhoff states that Dr. Fitzgerald’s

testimony provided helpful insight based on reasonable industry

standards and did not delve into instruction upon the law.

      HES’s challenge to Dr. Fitzgerald’s testimony focused on the

linkage to erroneous jury instructions.     Because we are reversing and

ordering a new trial based on the instructional errors, the admissibility of

her testimony will be in a somewhat different context on remand. We

review the general parameters of expert testimony.

      “An opinion is not objectionable just because it embraces an

ultimate issue.” Iowa R. Evid. 5.704 (2017). We favor a “liberal view on

the admissibility of expert testimony.”      Ranes, 778 N.W.2d at 685.

Whether an opinion should be excluded on the basis that it is couched in

legal terms “depends on ‘whether the terms used by the witness have a

separate, distinct and specialized meaning in the law different from that

present in the vernacular.’ ”    In re Det. of Palmer, 691 N.W.2d at 420

(quoting Torres, 758 F.2d at 151).        If so, the testimony should be

excluded. Id. For example, questions such as whether a defendant was

negligent or not negligent are improper because “[e]xperts are not to state

opinions as to legal standards.”    Iowa R. Evid. [5.]704 committee cmt.

(1983).

      The district court allowed Dr. Fitzgerald’s testimony, finding she

was “qualified as an expert on the subjects presented, as provided by

Iowa Rule of Evidence 5.702.” Dr. Fitzgerald testified she was hired for

two reasons: (1) to speak with Haskenhoff and evaluate whether she

displayed typical victim behavior in response to harassment, and (2) to
                                   72

examine HES’s policies and procedures on sexual harassment and opine

whether they met accepted standards in the field of human resources.

She opined that Haskenhoff suffered from major depressive disorder and

posttraumatic stress disorder, described these conditions for the jury,

and stated why they may be caused by harassing behavior. She testified

about whether this was common for victims of harassment.         She also

testified about what a “reasonable” company should do to prevent sexual

harassment according to human resources standards and whether HES

conformed to those standards. She skirted close to the line prohibiting

testimony on legal conclusions:

      A. . . . [T]here’s a distinction between—that I should make
      here—between violation of a company’s policy and violation
      of the law.
             Because they’re not—although there’s a great deal of
      overlap, they’re not always exactly the same. So there are
      things that can violate a company’s policy and not violate the
      law. . . .
            ....
            Q. Okay. “The standard of professional practice says
      an investigation,” and then you set out steps a competent
      investigator would take in order to conduct a real
      investigation into this or any other matter. And what are
      those steps? A. Well, I probably should have said “should”
      instead of must, because it’s not the law or anything. But
      the common practice recommendation . . . .
            ....
            Q. And your testimony doesn’t purport to tell the
      jurors what the law is proscribing sex harassment, does it?
      A. No, I do not speak to legal issues.

Testimony that particular conduct violated the ICRA clearly would be an

inadmissible legal conclusion.

      Expert testimony on the standard of care or standard of practice is

generally permitted in negligence actions. See Alcala, 880 N.W.2d at 709

(collecting cases requiring evidence of an employer’s standard of care and
                                      73

its breach to recover under a negligent-training theory); Oswald v.

LeGrand, 453 N.W.2d 634, 635 (Iowa 1990) (noting that in a professional

negligence action, “[o]rdinarily, evidence of the applicable standard of

care—and its breach—must be furnished by an expert”); Brandt v.

Richter, 159 N.W.2d 471, 474 (Iowa 1968) (allowing testimony of farm

safety expert and       discussing precedent rejecting argument such

testimony improperly altered the standard of care). But expert testimony

as to a legal conclusion is inadmissible in an ordinary negligence action.

See, e.g., Bell v. Cmty. Ambulance Serv. Agency, 579 N.W.2d 330, 338

(Iowa 1998) (affirming exclusion of opinion testimony of law enforcement

trainer that ambulance driver’s “actions were highly dangerous and likely

to cause injury”); Terrell v. Reinecker, 482 N.W.2d 428, 430 (Iowa 1992)

(holding it was reversible error to allow investigating police officer to

testify to the legal conclusion that plaintiff “failed to yield the right-of-

way”).     We have not previously decided where the line is drawn in a

hostile-work-environment case. We conclude the district court did not

abuse its discretion in allowing Dr. Fitzgerald’s testimony on the record

made at the first trial.

         IV. Disposition.

         For those reasons, we reverse the district court’s ruling denying

HES’s motion for new trial, vacate the judgments for plaintiff, and

remand the case for a new trial consistent with this opinion.

         DISTRICT    COURT      JUDGMENT       REVERSED         AND   CASE

REMANDED FOR NEW TRIAL.

         Mansfield and Zager, JJ., join this opinion.    Cady, C.J., files a

concurrence in part and dissent in part.        Appel, J., files a separate

concurrence in part and dissent in part in which Wiggins and Hecht, JJ.,

join and Cady, C.J., joins in part.
                                     74
                 #15–0574, Haskenhoff v. Homeland Energy Solutions, LLC

CADY, Chief Justice (concurring in part and dissenting in part).

      I concur in the result reached in the opinion authored by Justice

Waterman.      I agree the jury verdict must be reversed and a new trial

must be granted.     I write separately because I do not agree with the

result or reasoning on all the issues addressed in the opinion by Justice

Waterman. As to those issues with which I disagree, I join in the opinion

by Justice Appel.
      I. Direct Negligence Claim.

      The two opinions in this case both hold that a plaintiff may pursue

a hostile-work-environment claim against an employer under the Iowa

Civil Rights Act based on supervisor harassment under a legal theory of

either vicarious liability or negligence. I concur. The two opinions also

hold an employer cannot assert the affirmative defense recognized for

vicarious liability claims in Faragher v. City of Boca Raton, 524 U.S. 775,

807–08, 118 S. Ct. 2275, 2292–93 (1998), and Burlington Industries, Inc.

v. Ellerth, 524 U.S. 742, 764–65, 118 S. Ct. 2257, 2270 (1998), when

defending a negligence action.     To this, I also concur.     The dispute,

however, is whether the district court erred in failing to instruct the jury

that the employee must prove the employer failed to take prompt and

appropriate remedial action to end the harassment.          I conclude the

district court erred in failing to integrate this concept into its marshaling

instruction.

      It is a general rule of law that an employer is liable for negligently

creating or continuing a hostile work environment.       See Vance v. Ball

State Univ., 570 U.S. ___, ___, 133 S. Ct. 2434, 2452 (2013). This is a

correct statement of law, but far too general to be used as a marshaling

instruction for a claim of employer negligence based on sexual
                                    75

harassment by a supervisor.      Negligence in continuing a hostile work

environment is required to be analyzed within the context of whether or

not the employer failed to take reasonable remedial action within a

reasonable period of time.    Boyle v. Alum-Line, Inc., 710 N.W.2d 741,

747–48 (Iowa 2006). This was the essence of Haskenhoff’s claim based

on supervisor harassment. When the plaintiff asserts a vicarious liability

claim, the essential analysis is presented as an affirmative defense. See

Farmland Foods, Inc. v. Dubuque Human Rights Comm’n, 672 N.W.2d

733, 744 n.2 (Iowa 2003). When the plaintiff asserts a negligence claim,

the analysis comes within the reasonable care standard of negligence.

Lynch v. City of Des Moines, 454 N.W.2d 827, 833 (Iowa 1990).          The

employee must establish that a reasonable employer knew or should

have known of the harassment and failed to take reasonable action to

stop it within a reasonable period of time. Id. The instruction in this

case totally failed to inform the jury of this essential analysis.    As a

result, I would conclude the instruction materially misstated the law to

the detriment of the employer.

      II. Retaliatory Discharge: Causation.

      The two opinions disagree on the proper causation standard for

retaliatory discharge.   I agree the causation standard under the Iowa

Civil Rights Act is the same for discrimination claims under Iowa Code

section 216.6(1)(a) (2011) as it is for retaliation claims under section

216.11(2).    I also agree the standard is “a motivating factor.”

Nevertheless, the district court instruction modified this standard to only

require that the discrimination “played a part.”      This change in the

standard was not justified.

      In DeBoom v. Raining Rose, Inc., we explained that a motivating

factor must only have “played a part” and “need not have been the only
                                    76

reason.” 772 N.W.2d 1, 13 (Iowa 2009). Yet, this was only done to aid

the jury in applying the standard, not to eliminate the central concept of

the standard that the protected activity be a motivating factor in the

employer’s decision.   See id.   A motivating factor is one that helped

compel the decision, and the “played a part” language exists only to

clarify that the motivating factor need not be the only factor. See id.; see

also Hasan v. U.S. Dep’t of Labor, 400 F.3d 1001, 1006 (7th Cir. 2005)

(“A motivating factor is a factor that weighs in the defendant’s decision to

take the action complained of—in other words, it is a consideration

present to his mind that favors, that pushes him toward, the action. It is

a, not necessarily the, reason that he takes the action. Its precise weight

in his decision is not important.” (Citations omitted.)).      Therefore, I

concur in the opinion of Justice Appel to adopt the motivating factor

causation standard. However, I would find that the jury instruction in

this case failed to capture this standard.

      III. Retaliatory Discharge: Adverse Employment Action.

      Both opinions agree an adverse employment action is one that

“well might have ‘dissuaded a reasonable worker from making or

supporting a charge of discrimination.’ ” Burlington N. & Santa Fe Ry. v.

White, 548 U.S. 53, 68, 126 S. Ct. 2405, 2415 (2006) (quoting Rochon v.

Gonzales, 438 F.3d 1211, 1219 (D.C. Cir. 2006)).       Both opinions also

agree the district court erred in defining an “adverse employment action”

by including examples of actions that would be adverse as a matter of

law. I concur on both of these issues. As Burlington Northern instructs,

and as reason dictates, an adverse action “depend[s] upon the particular

circumstances.”    548 U.S. at 69, 126 S. Ct. at 2415.        The dispute,

therefore, is whether the error was harmless. It was not.
                                       77

        The court instructed the jury that one example of an adverse

action is a constructive discharge.         A constructive discharge occurs

“when the employer deliberately makes an employee’s working conditions

so    intolerable   that   the   employee   is   forced   into   an   involuntary

resignation.” Van Meter Indus. v. Mason City Human Rights Comm’n, 675

N.W.2d 503, 511 (Iowa 2004) (quoting First Judicial Dist. Dep’t of Corr.

Servs. v. Iowa Civil Rights Comm’n, 315 N.W.2d 83, 87 (Iowa 1982)). We

recognize constructive discharge to discourage “employers’ ‘end runs’

around the law”—employers know they cannot retaliate by formally

terminating the employee, so they may attempt to force the employee to

quit.    Balmer v. Hawkeye Steel, 604 N.W.2d 639, 641 (Iowa 2000).

Whether a discharge is formal or compelled, if it was motivated by the

employee’s engaging in a protected activity, it is still prohibited

retaliation.

        But constructive     discharge can also be a separate              claim,

recognized in extreme cases of hostile work environments. In this type of

constructive discharge claim, the employee must show the environment

was so bad he or she had no choice but to quit. See Pa. State Police v.

Suders, 542 U.S. 129, 147–48, 124 S. Ct. 2342, 2354 (2004) (“A hostile-

environment constructive discharge claim entails something more: A

plaintiff who advances such a compound claim must show working

conditions so intolerable that a reasonable person would have felt

compelled to resign.”).      An employee may want to prove constructive

discharge in a hostile-work-environment claim “because, as a general

rule, employees are entitled to back pay only when they have been

actually or constructively discharged.” Van Meter, 675 N.W.2d at 510–

11.      In a hostile-environment constructive discharge claim, the

employer’s motivation for the constructive discharge is irrelevant. See id.
                                     78

at 512. In a retaliatory discharge claim, the employee must show the

employer constructively discharged the employee “because” the employee

engaged in a protected activity. Iowa Code § 216.11(2). These two uses

of constructive discharge are related, but distinct.

      Here, the jury was instructed Haskenhoff must show “she was

subjected to sexual harassment or retaliation[,] which[] made her believe

there was no chance for fair treatment at Homeland.” (Emphasis added.)

It is possible the jury was confused by these alternatives. Under these

instructions, a jury could find the sexual harassment was so severe and

pervasive that Haskenhoff had no choice but to quit. But, Haskenhoff

did not advance constructive discharge based on an extreme case of

hostile work environment.       She used constructive discharge as an

example of retaliation. Even if the jury appropriately found constructive

discharge based on the severity of the hostile work environment, it does

not mean Homeland retaliated against Haskenhoff for reporting the

harassment. Therefore, the erroneous instruction on adverse action was

not harmless, and Homeland is entitled to reversal and a new trial.

      IV. Constructive Discharge Instruction.

      Both opinions agree that the district court did not err in the

constructive discharge instruction by explaining that an employer does

not need to want the employee to quit.       Both opinions also agree the

district court erred by using a subjective standard in the constructive

discharge instruction. I concur on both of these issues. See Van Meter,

675 N.W.2d at 511–12. The dispute is whether the district court erred in

refusing to instruct the jury that the employee must give the employer a

reasonable chance to resolve the problem before it may find the working

conditions were so intolerable a reasonable employee would have been

forced into resignation.    I conclude the district court did not err in
                                    79

refusing to give this instruction because it would not be a correct

statement of the law.

      Constructive discharge is a concept of reasonableness. At times, it

would not be reasonable for an employee to quit without giving the

employer a chance to resolve the problem. See id. at 511. But, at other

times, it would not be reasonable to require an employee to remain in

intolerable working conditions.   See id.    Evidence indicates employees

often choose not to report discrimination in the workplace at the time it

occurs. See Brief of Amici Curiae NAACP Legal Defense & Educational

Fund, Inc. & The National Women’s Law Center in Support of Petitioner,

Green v. Brennan, 578 U.S. ___, 136 S. Ct. 1769 (2016) (No. 14–613),

2015 WL 4237675, at *14–15 & nn.10–11 (compiling studies).           If the

unreported discrimination then turns the workplace intolerable, no

employee should reasonably be expected to remain on the job merely to

give the employer a chance to fix it.       Consequently, I concur in the

opinion of Justice Appel that the district court did not err in refusing to

instruct the jury that an employer must have a reasonable time to fix the

problem.

      V. Conclusion.

      First, an employee may bring a direct-negligence action against an

employer based on a supervisor’s harassment. The employer does not

have the benefit of an affirmative defense when defending such a claim.

The employee must, however, show the employer knew or should have

known of the harassment and failed to take reasonable action to stop it

within a reasonable period of time.      Second, in a claim for retaliatory

discharge, the employee must show the employee’s engaging in a

protected activity was a motivating factor in the employer’s decision to

take an adverse employment action. An adverse-employment action is
                                   80

one that would have deterred a reasonable employee from filing a

complaint.   Actions are not ordinarily adverse as a matter of law, but

depend on the circumstances. An employer taking such an action need

not really want the employee to quit, but the employee’s decision to quit

must be objectively reasonable. A constructive discharge may occur if a

reasonable employee would find the working conditions intolerable, even

if that employee did not give the employer an opportunity to correct the

problem.

      Because the jury instructions in this case did not accurately state

the above legal principles, I concur in part and with the result of the

opinion authored by Justice Waterman. I would remand for retrial on

both counts.   I dissent in part from that opinion and join in part the

opinion authored by Justice Appel for the reasons expressed above.
                                    81

                #15–0574, Haskenhoff v. Homeland Energy Solutions, LLC

APPEL, Justice (concurring in part and dissenting in part).

      I respectfully concur in part and dissent in part from the

majority/plurality opinion.   In my view, only the instruction related to

material adverse action in connection with plaintiff’s retaliation claim is

flawed. I find the district court properly instructed the jury on all other

issues in this case.

      I. Factual and Procedural Background.

      Homeland Energy Solutions, LLC (HES) is an ethanol processing

facility in Lawler, Iowa, where it opened in February 2009.           Tina

Haskenhoff began work at HES as a lab manager immediately upon its

opening.

      Kevin Howes was Haskenhoff’s supervisor.         Howes, along with

several of Haskenhoff’s coworkers, repeatedly made demeaning sexual

comments to Haskenhoff and engaged in other offensive behavior. This

included Howes frequently commenting on Haskenhoff’s breasts in front

of Haskenhoff and with other HES employees.

      In November 2010, Haskenhoff informed Howes that she would be

absent from a meeting for a medical appointment. Howes asked about

the reason for the appointment and, upon learning that it was for a

mammogram, told Haskenhoff that she should have the breast exam in

the parking lot in order to earn some money.

      Later that week, Haskenhoff told Chad Kuhlers about the offensive

behavior.   Kuhlers was on the board of directors for HES.        Kuhlers

immediately reported this information to HES’s president and CEO

Walter Wendland and to human resource manager Sarah Frein.

      Howes learned that Haskenhoff had complained about him, and he

met with Haskenhoff to ask that she drop the complaint. Howes said
                                    82

that he was worried he was going to be fired. Wendland also met with

Haskenhoff about the complaint, stating the employees of HES were “like

family.”    Haskenhoff reported later that she found Howes’s and

Wendland’s behaviors intimidating, and she feared the consequences to

her employment if she continued with the complaint. Haskenhoff agreed

to drop the complaint on the assumption that Howes’s behavior would

change.

      The sexually offensive behavior, however, continued.          Finally, on

August 8, 2011, Haskenhoff overheard Howes tell another employee that

Haskenhoff was marrying her fiancé for the money. This comment upset

Haskenhoff who told a coworker that Howes was “a fucking asshole.”

Haskenhoff left work in the middle of the day and sent an email to Howes

complaining about his comment.

      On August 17, Haskenhoff filed a sexual-harassment complaint

against Howes with Frein.      Several meetings occurred between the

participants thereafter. Finally, on August 30, Haskenhoff was asked to

meet with Wendland, David Finke—the CFO and head of human

resources—and    Howes.       At   this    meeting,    Haskenhoff’s       sexual-

harassment complaint was discussed.          Additionally, Howes presented

Haskenhoff with a ninety-day “performance improvement plan” for using

vulgar language when referring to Howes and walking off the job on

August     8.   The    plan   noted,      “Failure    to   adhere    to    these

expectations/conditions will result in further disciplinary action up to

termination.”

      Haskenhoff later said that after the August 30 meeting, she

realized HES would take no effective action against Howes and that if she

continued to complain about the harassment she would be fired.                On

August 31, Haskenhoff confronted Finke and accused him of letting
                                    83

Howes get away with the harassment and permitting Howes to retaliate

against her. Haskenhoff resigned.

      On May 21, 2012, Haskenhoff brought charges of employment

discrimination at the Iowa Civil Rights Commission.       The commission

gave Haskenhoff a release to bring suit, after which she brought suit in

district court for sexual harassment and retaliation under the Iowa Civil

Rights Act (ICRA). The jury found in favor of Haskenhoff and awarded

her damages. HES appealed, and we retained the appeal.

     II. Relationship Between State and Federal Civil Rights
Statutes.

      A. Introduction. Before analyzing the substantive issues in this

case, it is important to stress that the ICRA is not simply a knockoff of

the Federal Civil Rights Act. We have sometimes loosely said that the

ICRA was “modeled after” or mirrors Title VII. See, e.g., Estate of Harris

v. Papa John’s Pizza, 679 N.W.2d 673, 677–78 (Iowa 2004); Pecenka v.

Fareway Stores, Inc., 672 N.W.2d 800, 803 (Iowa 2003).               These

observations have validity only in the most general sense, can be

materially misleading, and in any case do not provide meaningful

guidance in the resolution of any concrete controversy under the ICRA.
      First, the modeled-after or mirror theory generally overlooks the

fact that the ICRA, as well as Title VII, were preceded by more than

twenty   state   statutes.   See    Andrea   Catania,   State   Employment

Discrimination Remedies and Pendent Jurisdiction Under Title VII: Access

to Federal Courts, 32 Am. U. L. Rev. 777, 782 n.24 (1983) [hereinafter

Catania]. Beginning in the 1940s, states passed civil rights statutes that

included many of the features now embraced in Title VII. Alex Elson &

Leonard Schanfield, Local Regulation of Discriminatory Employment

Practices, 56 Yale L.J. 431, 434 (1947).        There is a rich body of
                                            84

commentary on these state laws that seems to have been overlooked in

our cases suggesting that the ICRA mirrors or is modeled after Title VII. 19

       In fact, both the ICRA and Title VII drew from this preexisting body

of state law. See Pippen v. State, 854 N.W.2d 1, 30 (Iowa 2014). In an

article that appeared in the Iowa Law Review in the year that the ICRA

was passed, Professor Arthur Bonfield, a leading proponent of the

legislation, cited the experience in other states in support of the

legislation.     Arthur Earl Bonfield, State Civil Rights Statutes: Some

Proposals, 49 Iowa L. Rev. 1067, 1082 & n.65 (1964).

       Thus, the ICRA and Title VII both mirrored and were modeled after

preexisting state law in the same general sense that the ICRA is modeled

after or mirrors federal law.          For example, the “because of” causation

language in the ICRA and Title VII, which is at the heart of one of the

issues in this litigation, was used in state civil rights statutes that

predate them. 20 Similarly, retaliation provisions in state civil rights laws

       19See,  e.g., Arthur E. Bonfield, The Substance of American Fair Employment
Practices Legislation I: Employers, 61 Nw. U. L. Rev. 907, 909–10 & n.6 (1967); Elmer A.
Carter, Practical Considerations of Anti-Discrimination Legislation—Experience Under the
New York Law Against Discrimination, 40 Cornell L.Q. 40, 40 (1954); Richard B. Dyson
& Elizabeth D. Dyson, Commission Enforcement of State Laws Against Discrimination: A
Comparative Analysis of the Kansas Act, 14 U. Kan. L. Rev. 29, 29–31 (1965); Herbert
Hill, Twenty Years of State Fair Employment Practice Commissions: A Critical Analysis
with Recommendations, 14 Buff. L. Rev. 22, 22 (1964); Robert G. Meiners, Fair
Employment Practices Legislation, 62 Dick. L. Rev. 31, 31 & n.1, 33 (1957); Arnold H.
Sutin, The Experience of State Fair Employment Commissions: A Comparative Study, 18
Vand. L. Rev. 965, 965 & n.1 (1965).
        20The because-of causation language in Title VII’s discrimination and retaliation

provisions is also found in earlier state antidiscrimination statutes. See, e.g., Wash.
Rev. Code § 49.60.030 (1957) (“The right to be free from discrimination because of race,
creed, color, or national origin is recognized as and declared to be a civil right.”); Int’l
Bhd. of Elec. Workers Local 35 v. Comm’n on Civil Rights, 102 A.2d 366, 367 n.1 (Conn.
1953) (quoting the 1949 Connecticut Fair Employment Practices Act that “[i]t shall be
an unfair employment practice . . . (c) for a labor organization, because of the race,
color, religious creed, national origin or ancestry of any individual to exclude from full
membership rights or to expel from its membership such individual or to discriminate
in any way against any of its members”).
                                    85

predated the retaliation provision in the ICRA and Title VII. See, e.g.,

Wash. Rev. Code § 49.60.200 (1957); Wis. Stat. § 111.32(5)(b)(3) (1961);

Morroe Berger, New York State Law Against Discrimination: Operation

and Administration, 35 Cornell L. Rev. 747, 751 (1950) (describing the

contents of New York’s 1945 law). In this case, the relevant provisions of

the ICRA and Title VII are, as a matter of historical fact, modeled after or

mirror preexisting state law. Alex Long, State Anti-Discrimination Law as

Model for Amending the Americans with Disabilities Act, 65 U. Pitt. L. Rev.

597, 600 (2004) (stating “Congress modeled Title VII . . . on existing state

anti-discrimination laws”).

      Second, the modeled-after or mirrors theory particularly overlooks

the fact that Iowa had a preexisting civil rights statute before Title VII

was enacted.   Iowa’s first civil rights act was enacted in 1883 shortly

after the United States Supreme Court, in an appalling decision

corrected only decades later, held that a key portion of the Federal Civil

Rights Act of 1871—prohibiting discrimination by private persons—was

unconstitutional. See United States v. Harris, 106 U.S. 629, 644, 1 S. Ct.

601, 613 (1883), abrogated by Griffin v. Breckenridge, 403 U.S. 88, 104,

91 S. Ct. 1790, 1799 (1971).     Then, in 1963, fully a year prior to the

enactment of Title VII, Iowa joined twenty-six states in enacting a statute

prohibiting discrimination in employment.        That statute declared it

unlawful “for any person or employer to discriminate in the employment

of individuals because of race, religion, color, national origin, or

ancestry.” 1963 Iowa Acts ch. 330, § 1 (codified at Iowa Code § 105A.7

(1966)). Thus, the because-of causation language that later appeared in

the ICRA was based on language in an Iowa statute that predated Title

VII which was modeled after civil rights legislation in other states. It is

simply wrong to suggest that the because-of language in the ICRA was
                                           86

modeled after Title VII.       A more accurate statement would be that the

because-of language in Title VII was modeled after state law precedents,

including the ICRA of 1963.

       Third, while the texts of the two statutes are sometimes similar,

they are often quite dissimilar. There are material differences between

the two statutes in scope, structure, and remedy. Thus, a generalized

statement that the ICRA is modeled on, similar to, or mirrors Title VII

even from a textual viewpoint is often not true. 21               Further, as will be

shown below, the legislative history behind Title VII is often quite

distinctive and plainly inapplicable to any construction of the ICRA.

Instead of employing a generalized and often inaccurate slogan, in

interpreting the ICRA we must engage in serious, provision-by-provision

analysis, recognizing similarities when they appear, but also honoring

the differences.

       B. Legislative Direction that the ICRA “Shall Be Construed

Broadly to Meet Its Purposes.”              As all judges, lawyers, and litigants

know, the ICRA has many ambiguities and gaps which courts are called

upon to resolve and fill in the context of adversarial litigation. While the

Iowa legislature has advanced a statute with ambiguities and gaps, it has

provided courts with an instruction on how to approach it. Specifically,

the legislature has directed that the ICRA “shall be construed broadly to



       21The  same historical mistake is often made with respect to the Iowa
Constitution, which some claim is modeled after the United States Constitution. In
fact, the United States Constitution, and every provision of its Bill of Rights, was
derived from provisions of state constitutions that existed before 1789, especially the
Virginia Declaration of Rights and the Massachusetts Constitution. The documents
published in Paris by Benjamin Franklin, hailed to be the first written constitutions,
were state constitutions, not the later and largely derivative United States Constitution.
See Daniel J. Hulsebosch, The Revolutionary Portfolio: Constitution-Making and the
Wider World in the American Revolution, 47 Suffolk U. L. Rev. 759, 802 & n.222 (2014).
                                       87

effectuate its purposes.” Iowa Code § 216.18(1) (2011). As we pointed

out in Pippen, there is no comparable language in the federal statute.

854 N.W.2d at 28.        Iowa Code section 216.18(1) is an example of a

provision of the ICRA that is not modeled after and does not mirror Title

VII.

       Our better reasoned cases show that this marked textual difference

is consequential. In Pippen, we pointed out that a number of other state

supreme courts have construed similar statutory language in civil rights

acts to require the “widest constitutional application.” Id. (quoting Fair

Emp’t Practices Comm’n v. Rush-Presbyterian-St. Luke’s Med. Ctr., 354

N.E.2d 596, 600 (Ill. App. Ct. 1976) (holding that a wide application was

required given the legislative intent for the remedial provisions of the

act)); see also Wondzell v. Alaska Wood Prods., Inc., 601 P.2d 584, 585

(Alaska 1979) (finding Alaska civil rights act not simply modeled after

federal law, but “intended to be more broadly interpreted than federal law

to further the goal of eradication of discrimination . . . [as shown by the]

legislature’s intent ‘to put as many “teeth” into the statute as possible’ ”

(quoting McLean v. State, 583 P.2d 867, 869 (Alaska 1978) (citations

omitted))); Marquis v. City of Spokane, 922 P.2d 43, 49–50 (Wash. 1996)

(en    banc)   (explicitly   recognizing    legislative   directive   to   construe

Washington civil rights statute liberally); Allison v. Hous. Auth. of Seattle,

821 P.2d 34, 38 (Wash. 1981) (en banc) (“Title VII differs from

[Washington civil rights law] in that Title VII does not contain a provision

which requires liberal construction for the accomplishment of its

purposes.”); Lodis v. Corbis Holdings, Inc., 292 P.3d 779, 787 (Wash. Ct.

App. 2013) (Adopting federal precedent would “impermissibly narrow the

protective language and purposes of [Washington’s civil rights law],

contrary to the liberal construction mandate of the act.”).
                                      88

      A few state civil rights statutes passed prior to the ICRA also

contained provisions directing courts to construe the statute broadly.

See, e.g., Del. Code Ann. tit. 6, § 4502 (1963) (“This chapter shall be

liberally construed to the end that the rights herein provided for all

people without regard to race, creed, color or national origin may be

effectively safeguarded.”); Wash. Rev. Code § 49.60.020 (1957) (“The

provisions   of   this   chapter   shall   be   construed   liberally   for   the

accomplishment of the purposes thereof.”); W. Va. Code § 5-11-265(161)

(1961) (“The provisions of this article shall be liberally construed to

accomplish its objectives and purposes.”); Wis. Stat. § 111.31 (1961) (“All

the provisions of this subchapter shall be liberally construed for the

accomplishment of this purpose.”).

      Plainly, a narrow construction of the ICRA would be in defiance of

the legislative mandate to broadly construe the statute to effectuate its

purposes and would amount to a judicial recrafting of the statute. As we

stated in Pippen, an Iowa court “must keep in mind the legislative

direction of broadly interpreting the Act when choosing among plausible

legal alternatives.” 854 N.W.2d at 28.

      The legislative direction that we broadly interpret the ICRA makes

federal authority that chooses narrow constructions among available

options suspect.     Federal courts, and particularly the United States

Supreme Court, have demonstrated a marked tendency to embrace a

narrow construction of federal civil rights statutes in the face of more

generous plausible alternatives.      As a result, Congress has repeatedly

overridden by statute narrow interpretations of federal civil rights laws.

Seven important United States Supreme Court civil rights cases

overridden by Congress include General Electric Co. v. Gilbert, 429 U.S.

125, 134, 97 S. Ct. 401, 407 (1976) (holding discrimination based on
                                    89

pregnancy was not sex discrimination), superseded by statute, Pregnancy

Discrimination Act of 1978, Pub. L. No. 95-555, 92 Stat. 2016 (codified

as amended at 42 U.S.C. § 2000e(k) (2012)); Price Waterhouse v. Hopkins,

490 U.S. 228, 239–40, 109 S. Ct. 1775, 1785 (1989) (interpreting

“because of” in the context of discrimination), superseded by statute,

Civil Rights Act of 1991, Pub. L. No. 102-166, 105 Stat. 1071 (codified as

amended at 42 U.S.C. § 2002e–2(m)); Wards Cove Packing Co. v. Atonio,

490 U.S. 642, 656–57, 109 S. Ct. 2115, 2124–25 (1989) (requiring proof

of discriminatory intent in disparate impact cases), superseded by

statute, Civil Rights Act of 1991, Pub. L. No. 102-166, 105 Stat. 1071

(codified as amended at 42 U.S.C. § 2000e–2(k)); Patterson v. McLean

Credit Union, 491 U.S. 164, 176–77, 109 S. Ct. 2363, 2372 (1989)

(holding that conduct occurring after the formation of an employment

contract could not be racial discrimination under § 1981), superseded by

statute, Civil Rights Act of 1991, Pub. L. No. 102-166, 105 Stat. 1071

(codified as amended at 42 U.S.C. § 1981(b)); Sutton v. United Airlines,

Inc., 527 U.S. 471, 478, 119 S. Ct. 2139, 2144 (1999) (announcing a

restrictive interpretation of “impairment” and “disability” under the ADA),

superseded by statute, ADA Amendment Act of 2008, Pub. L. No. 110–

325, 112 Stat. 3553 (codified as amended at 42 U.S.C. § 12102(3));

Toyota Motor Mfg. of Ky., Inc. v. Williams, 534 U.S. 184, 195, 122 S. Ct.

681, 690 (2002) (narrowing scope of protection under the ADA),

superseded by statute, ADA Amendment Act of 2008, Pub. L. No. 110–

325, 112 Stat. 3553 (codified as amended at 42 U.S.C. § 12102(3)); and

Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618, 621, 127 S. Ct.

2162, 2165 (2007) (holding statute of limitations for discriminatory pay

practices begins when initial pay decision was made), superseded by

statute, Lilly Ledbetter Fair Pay Act of 2009, Pub. L. No. 111-2, 123 Stat.
                                           90

5 (codified as amended at 42 U.S.C. § 2000e–5(e)(3)). See, e.g., 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, 40 (2009) (stating “blind

adherence to federal interpretation of discrimination principles on state

employment discrimination claims is not only often inappropriate, but

also   has     seriously     impacted       the    development       of    employment

discrimination law”); Sandra F. Sperino, Revitalizing State Employment

Discrimination Law, 20 Geo. Mason L. Rev. 545, 583 (2013) [hereinafter

Sperino, Revitalizing] (“[T]he federal courts have repeatedly interpreted

federal law narrowly in ways that drew a response from Congress.”).

Uncritical incorporation of the principles of these now superseded cases

under the ICRA would run counter to the Iowa legislature’s directive that

the ICRA be “broadly interpreted to effectuate its purposes.” Iowa Code

§ 216.18(1); see also Goodpaster v. Schwan’s Home Servs., Inc., 849

N.W.2d 1, 9–10 (Iowa 2014).

       And these are only the cases that Congress managed to override.

Whenever a highly divided United States Supreme Court chooses a

narrow interpretive path under federal civil rights statutes, we must

consider whether the dissenting opinion is more consistent with the

legislative direction that the ICRA be broadly interpreted to achieve its

goals. 22

       22It is sometimes asserted that we should follow federal precedent under Title VII
to foster uniformity. When Congress enacted Title VII in 1964, approximately one-half
of the states had some kind of antidiscrimination statute. See Susan Elizabeth Powley,
Exploring a Second Level of Parity: Suggestions for Developing an Analytical Framework
for Forum Selection in Employment Discrimination Litigation, 44 Vand. L. Rev. 641, 667 &
n.184 (1991). Congress expressly considered the question of requiring uniformity when
it declared that Title VII does not preempt state law. See 42 U.S.C. § 2000h-4;
Alexander v. Gardner-Denver Co., 415 U.S. 36, 48–49, 94 S. Ct. 1011, 1019–20 (1974)
(“[T]he legislative history of Title VII manifests a congressional intent to allow an
                                         91

       The directive to construe the ICRA broadly has had impact. For

instance, in Goodpaster, we considered whether an intermittent or

episodic impairment—multiple sclerosis—fell within the definition of

“disability” under the ICRA. 849 N.W.2d at 6. We emphasized section

216.8(1)’s instruction to interpret the ICRA broadly in reaching the result

that multiple sclerosis could be a disability under the ICRA. Id. at 9–10,

18. We noted that this difference with federal law rendered many federal

cases inapposite in interpreting the ICRA. Id. at 10. We cited several of

our cases in which section 216.18(1) had a “substantive impact on the

outcome.”      Id.; see, e.g., Polk Cty. Secondary Rds. v. Iowa Civil Rights

Comm’n, 468 N.W.2d 811, 815–16 (Iowa 1991).

       In construing a provision of the ICRA, the legislative direction to

broadly construe the statute to effectuate its purposes must be

recognized. To ignore this provision is to rewrite the statute to achieve

desired policy results.

       C. Textual Differences Between the ICRA and Federal Civil

Rights Statutes. When there are textual differences between the ICRA

and federal civil rights statutes, we must be attentive to those

differences.    When there are textual differences, the modeled-after or

mirror declarations have no application, and indeed an opposite



_________________________
individual to pursue independently his rights under both Title VII and other applicable
state and federal statutes. The clear inference is that Title VII was designed to
supplement rather than supplant, existing laws and institutions relating to employment
discrimination.”).   Further, it is doubtful that uniformity will be advanced by
incorporation of federal law. The United States Supreme Court has resolved only a
handful of cases in the civil rights area over the years. The literature is full of
documentation of various splits in the federal circuits on numerous questions that the
Supreme Court has not resolved. The stability of incorporating a handful of Supreme
Court precedents is outweighed by dragging into Iowa law the many controversies in the
federal caselaw that have not been resolved.
                                    92

conclusion may be more appropriate, namely, that differences in text are

deliberate and substantive.

      A good example of the need to recognize textual differences

between the ICRA and federal civil rights law is Hulme v. Barrett

(Hulme I), 449 N.W.2d 629 (1990). In Hulme I, we considered whether

the provision of the Federal Age Discrimination in Employment Act

(ADEA) of 1967 limiting coverage to those forty years of age or older

applied under the ICRA.       Id. at 631.   The district court, apparently

following a version of the modeled-after or mirror theory, held that the

limitation in the Federal ADEA also applied under the ICRA. Id. at 631.

      We reversed. Id. at 632. We noted that while the federal statute

had language explicitly limiting claims to persons above the age of forty,

the ICRA had no such textual limitation. Id. at 631–32. In Hulme I, we

correctly declined to follow federal precedent because the text of our

statute was not modeled after and did not mirror federal law. As will be

seen below, there are important textual and legislative history differences

between the ICRA and Title VII as it relates to the causation element in

retaliation claims.

      D. Structural Differences Between the ICRA and Federal Civil

Rights Statutes. As pointed out in Pippen, there is also an important

structural difference between the ICRA and various civil rights statutes.

See 854 N.W.2d at 28. The ICRA is a unified statute. In contrast, the

federal civil rights regime is more fragmented. See Age Discrimination in

Employment Act of 1967, 29 U.S.C. § 623; Civil Rights Act of 1964, 42

U.S.C. § 2000e–2 (Title VII); American with Disabilities Act of 1990, 42

U.S.C. § 12112. Thus, while the federal courts have developed different

tests for different causes of action under different statutes, the Iowa

statute generally calls out for a singular, unified approach.    See, e.g.,
                                       93

Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 176–78, 129 S. Ct. 2343,

2350–51 (2009) (holding that Title VII and ADEA causation standards are

different).   It would be very difficult to come to the same conclusion

under the ICRA, a unified statute with one statutory provision

establishing what constitutes status-based discrimination. The fractured

nature of federal law compared to the unified approach of the ICRA

makes wholesale importation of federal law questionable. See Sperino,

Revitalizing, 20 Geo. Mason L. Rev. at 560 (contrasting unified state

regimes with fractured federal law).

       E. Interpretation of Gaps and Ambiguous Phrases. Civil rights

statutes contain many notoriously open-ended or ambiguous phrases

that cry out for interpretation. For ambiguous phrases, there is rarely

only one plausible interpretation.     See Hack v. President & Fellows of

Yale Coll., 237 F.3d 81, 95 (2d Cir. 2000) (“The Act’s ambiguous language

. . . has allowed a number of contradictory standards to emerge.”). For

example, the phrase “because of” sex, race, and other classifications has

given rise to a wide number of potential interpretations. See David S.

Schwartz, When Is Sex Because of Sex? The Causation Problem in Sexual

Harassment Law, 150 U. Pa. L. Rev. 1697, 1708–09 (2002) [hereinafter

Schwartz] (noting different approaches to ambiguous terms).      There is

simply no requirement that in construing ambiguous phrases we should

follow the lead of the United States Supreme Court rather than that of

another state court or where our own judgment would lead us.

       Further, many legal structures developed by the United States

Supreme Court are not found in the statutory text of Title VII and have

been fashioned by the Supreme Court based on its policy perceptions.

For example, the requirement that harassment be “pervasive and severe”

in order to amount to actionable discrimination does not appear in the
                                   94

text of Title VII. See Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67,

106 S. Ct. 2399, 2405–06 (1986). It is a judicial construct created by the

United States Supreme Court.     The complex architecture surrounding

disparate impact also has no clear textual foundation. Cf. Wards Cove,

490 U.S. at 656–58, 109 S. Ct. at 2124–25; Watson v. Ft. Worth Bank &

Tr., 487 U.S. 977, 986–89, 108 S. Ct. 2777, 2784–86 (1988); Griggs v.

Duke Power Co., 401 U.S. 424, 431–32, 91 S. Ct. 849, 853–54 (1970).

The burden-shifting approach to causation found in various United

States Supreme Court cases is without explicit textual support.       See

Desert Palace, Inc. v. Costa, 539 U.S. 90, 93–94, 123 S. Ct. 2148, 2150–

51 (2003); Price Waterhouse, 490 U.S. at 244–45, 109 S. Ct. at 1787–88;

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817,

1824 (1973). The notion that an “adverse action” is required to support a

retaliation claim is not mentioned in Title VII. Burlington N. & Santa Fe

Ry. v. White, 548 U.S. 53, 56–57, 126 S. Ct. 2405, 2408–09 (2006). And,

the Faragher–Ellerth defense developed by the Supreme Court for cases

involving vicarious liability of supervisors when there is no tangible

adverse employment action has no explicit textual support in Title VII,

but was crafted primarily as a result of the policy considerations of the

Court. See Faragher v. City of Boca Raton, 524 U.S. 775, 804–05, 118

S. Ct. 2275, 2291–92 (1998); Burlington Indus., Inc. v. Ellerth, 524 U.S.

742, 765, 118 S. Ct. 2257, 2270 (1998).

      These judicially developed constructs are not textually guided, but

instead reflect the views of a majority of the United States Supreme

Court on the subject of discrimination. If one believes, for example, that

discrimination in the workplace is a relatively rare occurrence, the

development of demanding judicial standards through interpretation or

construction may seem to make sense.         On the other hand, if one
                                          95

believes that discrimination is widespread and intractable, a different

result might occur. Sperino, Revitalizing, 20 Geo. Mason L. Rev. at 575–

77.

       Because of the lack of textual support, it is not surprising that a

number of courts have declined to create a Faragher–Ellerth defense for

cases involving vicarious liability under state civil rights acts. See, e.g.,

Myrick v. GTE Main St. Inc., 73 F. Supp. 2d 94, 98 (D. Mass. 1999)

(declining to apply Faragher–Ellerth defense on state law grounds);

Chambers v. Trettco, Inc., 614 N.W.2d 910, 918 (Mich. 2000) (rejecting

Faragher–Ellerth      under    Michigan        law);   Pollock   v.   Wetterau    Food

Distribution Grp., 11 S.W.3d 754, 767 (Mo. Ct. App. 1999) (refusing to

add words to Missouri human rights statute to establish a Faragher–

Ellerth defense).

       In making choices regarding ambiguous phrases and determining

whether and how to fill legislative gaps, Iowa courts are free to depart

from what are often very narrow and cramped approaches of federal

law. 23 For example, in Goodpaster, we rejected United States Supreme

Court precedent that, contrary to the ICRA, declared the Americans with

Disabilities Act must be “interpreted strictly to create a demanding
standard for qualifying as disabled.” 849 N.W.2d at 10 (quoting Toyota,

534 U.S. at 197, 122 S. Ct. at 691); see Sutton, 527 U.S. at 488, 119

S. Ct. at 2149. The Supreme Court’s determination to strictly interpret




        23No one would suggest, for instance, that if Iowa were to adopt a statute

modeled after the statute of another state, we would be compelled to follow the
interpretations of the supreme court of the other state in interpretation of Iowa law.
See Crosby v. Alton Ochsner Med. Found., 276 So. 2d 661, 665 (Miss. 1973) (holding
that when Mississippi adopted a statute modeled after a Georgia enactment, decisions
of the Georgia courts did not bind Mississippi courts in interpretation of the statute).
                                             96

the statute flies in the face of the Iowa legislature’s direction to construe

the statute broadly. See Iowa Code § 216.18(1). 24

       Thus, in order to choose the best interpretive option on a statutory

issue under the ICRA, it is not enough to simply cut and paste a version

of federal law into the Northwest Reporter and call it a day. 25 We do not

follow federal constitutional interpretations lockstep, even of parallel

provisions,     and     there    is   no    reason     to   follow    federal     statutory

interpretation in a lockstep fashion in similar statutes. 26                       Instead,

       24For  an interesting discussion, see Tyler S. Smith, Note, A Mid-Life Crisis in the
Interpretation of the Iowa Civil Rights Act of 1965: How Should State Courts Interpret
Original State Antidiscrimination Statutes After Federal Counterpart Statutes Are
Amended?, 64 Drake L. Rev. 1117, 1141–49 (2016).
       25Such a reaction has been referred to as a “Pavlovian response” to federal

opinions. Stone v. St. Joseph’s Hosp. of Parkersburg, 538 S.E.2d 389, 410 (W. Va. 2000)
(McGraw, J., concurring in part and dissenting in part).
       26Many   state civil rights cases have declined to follow federal authorities. See,
e.g., Smith v. Anchorage Sch. Dist., 240 P.2d 834, 842 (Alaska 2010) (rejecting Supreme
Court but-for test for age discrimination under unified Alaska statute); Reid v. Google,
Inc., 235 P.3d 988, 991–92 (Cal. 2010) (departing from “stray remarks” precedent of
Supreme Court); Williams v. Dep’t of Pub. Safety, 369 P.3d 760, 774 (Colo. 2015)
(rejecting Federal Title VII precedent that front pay is an available remedy under
Colorado antidiscrimination act); Vollemans v. Town of Wallingford, 928 A.2d 586, 602
(Conn. App. Ct. 2007) (rejecting the Ricks–Chardon rule for filing requirements in
discriminatory discharge cases under Connecticut law), aff’d, 956 A.2d 579 (2008)
(adopting fully the “thoughtful and comprehensive” opinion of the appellate court);
Sangamon Cty. Sheriff’s Dep’t v. Ill. Human Rights Comm’n, 908 N.E.2d 39, 45–47 (Ill.
2009) (rejecting Supreme Court precedent in holding employer strictly liable for sexual
harassment of a supervisor when supervisor had no authority to affect terms and
conditions of employment); Loras Coll. v. Iowa Civil Rights Comm’n, 285 N.W.2d 143,
147 (Iowa 1979) (“[W]e are not bound by federal cases construing a federal statute when
we are called upon to construe our own Civil Rights Act.”); Ruffin Hotel Corp. of Md. v.
Gasper, 17 A.3d 676, 685 (Md. 2011) (finding that Title VII precedent “does not comport
with Maryland law”); City of New Bedford v. Mass. Comm’n Against Discrimination, 799
N.E.2d 578, 589 (Mass. 2003) (noting the differences between Massachusetts disability
act and federal counterpart in definition of “major life activity”); Dahill v. Police Dep’t of
Boston, 748 N.E.2d 956 (Mass. 2001) (rejecting Sutton); Coll. Town, Div. of Interco, Inc. v.
Mass. Comm’n Against Discrimination, 508 N.E.2d 587, 592 (Mass. 1987) (rejecting
Faragher–Ellerth under Massachusetts statute); Chambers v. Tretteo, Inc., 614 N.W.2d
910, 918 (Mich. 2000) (declining to follow Faragher–Ellerth); Van Den Berk v. Mo.
Comm’n on Human Rights, 26 S.W.3d 406, 411 (Mo. Ct. App. 2000) (announcing that
Missouri cases will depart from federal civil rights law “where that law is not in accord
with the thrust of our state’s statute” (quoting Wentz v. Industrial Automation, 847
                                           97

consistent with preservation principles, 27 we must first identify potential

interpretive options that are available to the court.                 Ordinarily, this

involves a survey of state as well as federal law.                Once the potential

alternative approaches are identified, we should proceed to select the

interpretive option that we find most consistent with the ICRA, its

underlying purposes, and the legislative direction that the text be

“broadly construed to effectuate its purposes.” Iowa Code § 216.18(1).

We may, of course, rely on persuasive federal precedents, especially

when the language of Title VII and the ICRA are, in fact, similar, the

federal interpretation is consistent with the legislature’s directive of

broad interpretation, and the rationale of the federal caselaw persuades

us that the best choice has been made. But we must look for persuasive

reasoning that fits the Iowa statute. And, we should not mask our policy

_________________________
S.W.2d 877, 879 (Mo. Ct. App. 1992))); Laudert v. Richland Cty. Sheriff’s Dep’t, 7 P.3d
386, 397 (Mont. 2000) (rejecting federal definition of prevailing plaintiff because such a
reading would not further purpose of Montana Human Rights Act); Alexander v. Seton
Hall Univ., 8 A.3d 198 (N.J. 2010) (declining to follow crabbed framework of analysis of
statute of limitations under Ledbetter); L.W. ex rel. L.G. v. Toms River Reg’l Sch. Bd. of
Educ., 915 A.2d 535, 549 (N.J. 2007) (rejecting Title IX deliberate indifference standard
in favor of analogous New Jersey precedent); Lehrmann v. Toys ‘R’ Us, Inc., 626 A.2d
445 (N.J. 1993) (declining to follow Meritor majority and adopting position of
concurrence); Saffos v. Avaya Inc., 16 A.3d 1076, 1095 (N.J. Super. Ct. App. Div. 2011)
(rejecting Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 130 S. Ct. 1662 (2010),
observing that New Jersey courts are not reluctant to depart from federal precedent in
appropriate circumstances); Bennett v. Health Mgmt. Sys., Inc., 936 N.Y.S.2d 112, 116
(App. Div. 2011) (observing that the New York City civil rights act has “uniquely broad
and remedial purposes” which go beyond its state and federal counterparts); Vitale v.
Rosina Food Prod., Inc., 727 N.Y.S. 215, 217 (App. Div. 2001) (differentiating state from
federal sexual harassment law); Coryell v. Bank One Trust Co. N.A., 803 N.E.2d 781,
785–86 (Ohio 2004) (declining to follow federal precedent in age discrimination matter);
Allison, 821 P.2d at 35 (departing from federal but-for causation for a retaliation claim
under the Washington Human Rights Act); Putcino v. Fed. Express Corp., 9 P.3d 787
(Wash. 2000) (departing from federal precedent in defining “disability”); see generally
Alex B. Long, Viva State Employment Law! State Law Retaliation Claims in a Post-
Crawford/Burlington Northern World, 77 Tenn. L. Rev. 253, 268–76 (2010); Sperino,
Revitalizing, 20 Geo. Mason L. Rev. at 545.
       27See   Pippen, 854 N.W.2d at 31.
                                       98

choices in resolving ambiguities and filling statutory gaps through

language suggesting that the choice was somehow inexorable or

determined with a mathematical certainty that may be found in the

scientific world but evades the law. We are in the business of judging,

not calculating.

      F. Independent       Interpretation       of   ICRA   Consistent    with

Federalism and Congressional Intent Behind Title VII.                    When

Congress enacted Title VII, approximately one-half of the states had civil

rights statutes already.       Catania, 32 Am. U. L. Rev. at 782 n.24.

Congress expressly determined not to preempt state law.              42 U.S.C.

§ 2000h-4.    As noted by the United States Supreme Court, Congress

intended Title VII “to supplement, rather than supplant, existing laws

and institutions related to employment discrimination.” See Alexander v.

Gardner-Denver Co., 415 U.S. 36, 47–48, 94 S. Ct. 1011, 1019–20 (1974)

(finding legislative history showed clear congressional intent to allow an

individual to pursue state law remedies simultaneously with Title VII).

Congress plainly did not intend to preempt state civil rights laws. Id. As

noted by Professor Bonfield, “the federal act . . . recognizes the continued

effectiveness of state fair employment laws and provides that they will

retain a vital and perhaps dominant role in this area.”              Arthur E.

Bonfield,    The   Substance    of   American    Fair   Employment    Practices

Legislation I: Employers, 61 Nw. U. L. Rev. 907, 919 (1967).

      A conclusion that state courts should generally follow the twists

and turns in federal law would be ironic in light of the congressional

intent to allow, if not encourage, state experimentation.

      G. A Note on Law of the Case, Stare Decisis, and Dictum. If

one looks through our ICRA cases, federal cases are often simply cited

for propositions of law without substantive discussion. Often times in
                                     99

this setting, we were simply restating legal principles that the parties

were not contesting in the case. When a legal principle is embraced by

the parties by agreement and is not contested on appeal, the court’s

subsequent recitation of the legal principle is not a holding in the case

that was a product of an adversary proceeding. See Berger v. Gen. United

Grp., Inc., 268 N.W.2d 630, 635 (Iowa 1978) (holding that because

plaintiffs assumed Delaware law was properly pled and proven by

defendants, we would consider Delaware law, but stressed that this case

was not precedent for ignoring our rules of pleading and proof on foreign

law); see also United States v. Hemingway, 734 F.3d 323, 335 (4th Cir.

2013) (finding a prior case to have no precedential value on a question

because the issue was not contested in the earlier case); Goldberger v.

Integrated Res., Inc., 209 F.3d 43, 49 (2d Cir. 2000) (earlier case was not

precedent because “that issue was neither contested by the parties, nor

addressed by the panel”); Fulton Found. v. Wis. Dep’t of Taxation, 108

N.W.2d 312, 316–17 (Wis. 1961) (holding previous case when no one

challenged the issue could not be precedent on the issue); Silver Lake

Sanitary Dist. v. Wis. Dep’t of Nat. Res., 607 N.W.2d 50, 54 (Wis. Ct. App.

1999) (“It is blackletter law that an opinion does not establish binding

precedent for an issue if that issue was neither contested nor decided.”).

      An uncontested statement of law is not entitled to stare decisis.

See, e.g., Hemingway, 734 F.3d at 335; Goldberg, 209 F.3d at 49; Berger,

268 N.W.2d at 635; Fulton, 108 N.W.2d at 317. Instead, the agreed upon

legal principle is law of the case binding on the parties in the event of

retrial, but nothing more. State v. Ragland, 812 N.W.2d 654, 658 (Iowa

2012) (holding settled legal principles are binding on litigants throughout

future progress of case); accord State ex rel. Goettsch v. Diacite Distribs.,

Inc., 596 N.W.2d 532, 537 (Iowa 1999).
                                    100
      III. Negligence Theory, Vicarious Liability, and the Faragher–
Ellerth Defense.

      A. Overview of the Issue.           When an employee is sexually

harassed by other employees, the question arises to what extent the

employer may be held responsible for the actions of its employees under

civil rights laws.   One question is whether it should matter that the

harassment was committed by a coworker or by a supervisor.             If the

harassment is by a supervisor, should the supervisor be considered an

agent of the employer and thus provide a basis for vicarious liability? If
different legal consequences flow from harassment involving a supervisor

compared to harassment by coworkers, how does the law handle

situations when harassers include both coworkers and supervisors?

      As with many similar issues, nothing in the ICRA or Title VII

expressly answers these questions, and as a result, courts are left to

resolve the issue through statutory interpretation. Courts are required

to fill the gaps in the statute in the crucible of an adversary proceeding.

      B. Challenged Trial Court Instruction. The starting place of our

analysis is a review of the jury instructions on Haskenhoff’s claim of

negligence under the ICRA.       In Instruction No. 14, the marshalling

instruction for sexual harassment, the jury was instructed Haskenhoff

had to prove, among other things, that “6. Homeland Energy Solutions,

L.L.C., knew or should have known of the occurrence of one or more

sexually harassing incidents.     7. Homeland Energy Solutions, L.L.C.,

acted negligently in creating or continuing a hostile work environment.”

The language in Instruction No. 14 is drawn nearly verbatim from the

United States Supreme Court description of direct negligence claims

under Title VII provided in Vance v. Ball State University, 570 U.S. ___,

___, 133 S. Ct. 2434, 2452 (2013), which stated “an employer will always
                                     101

be liable when its negligence leads to the creation or continuation of a

hostile work environment.”

       With respect to negligence, Instruction No. 17 instructed the jury

that

             “Negligence” means failure to use ordinary care.
       Ordinary care is the care which a reasonably careful
       employer would use in similar circumstances. “Negligence”
       is doing something a reasonable careful employer would not
       do under similar circumstances, or failing to do something a
       reasonably careful employer would do under similar
       circumstances.

Except for substituting the term “employer” for “person,” Instruction

No. 17 is a verbatim version of Iowa State Bar Association Jury

Instruction 700.2 entitled “Ordinary Care—Common Law Negligence—

Defined.” This instruction has been used countless times in the courts

of this state in negligence cases.

       Finally, in Instruction No. 24, the jury was instructed that

       [o]nce an employer knows or should have known of sexual
       harassment, it must take prompt remedial action reasonably
       calculated to end the conduct. The employer has a duty to
       take this remedial action even if an employee asks the
       employer not to do anything.

(Emphasis added.)     Instruction No. 24 is derived from the affirmative

defense for vicarious liability claims from Faragher–Ellerth.

       C. Overview of Review of Jury Instructions. In fashioning jury

instructions, we have repeatedly stated that a trial court “need not

instruct in a particular way so long as the subject of the applicable law is

correctly covered when all the instructions are read together.” State v.

Uthe, 542 N.W.2d 810, 815 (Iowa 1996). A trial court “is free to draft jury

instructions in its own language.” Hoekstra v. Farm Bureau Mut. Ins.,

382 N.W.2d 100, 110 (Iowa 1986). We have emphasized that the court

need not use terms suggested by the parties. Bossuyt v. Osage Farmers
                                    102

Nat’l Bank, 360 N.W.2d 769, 772 (Iowa 1985). And, our instructions do

not need to follow particular authorities. In Bossuyt, we emphasized that

an instruction on fraud was sufficient even though it did not follow the

exact phrasing of the Restatement (Second) of Contracts. Id. at 774.

      Our well-established Iowa caselaw is consistent with federal

precedent.   As noted by one federal appellate court, review of jury

instructions does not require “word-by-word hairsplitting.”     Johnson v.

Breeden, 280 F.3d 1308, 1314 (11th Cir. 2002). As long as instructions

“accurately reflect the law, the trial judge is given wide discretion as to

the style and wording employed.” United States v. Starke, 62 F.3d 1374,

1380 (11th Cir. 1995).

      The question in considering the legal sufficiency of a jury

instruction is whether relevant elements of a claim “may be adequately

conveyed to the jury by the evidence and by argument of counsel under

the instruction that the court gave.” Hillrichs v. Avco Corp., 478 N.W.2d

70, 74 (Iowa 1991), abrogated on other grounds by Reed v. Chrysler Corp.,

494 N.W.2d 224, 226 (Iowa 1992).          What is important is that the

instructions, considered as a whole, were sufficient “so that the jurors

understood the issues and were not misled.” Johnson, 280 F.3d at 1314

(quoting Starke, 62 F.3d at 1380). Generally understood terms which are

in ordinary usage do not need to be defined. State v. Kellogg, 542 N.W.2d

514, 516 (Iowa 1996).

      When error in a jury instruction is not of constitutional magnitude,

“the test of prejudice is whether it sufficiently appears that the rights of

the complaining party have been injuriously affected or that the party

has suffered a miscarriage of justice.” State v. Gansz, 376 N.W.2d 887,

891 (Iowa 1985). Reversal is required if the jury instructions misled the
                                   103

jury or if the court materially misstates the law.   Rivera v. Woodward

Res. Ctr., 865 N.W.2d 887, 892 (Iowa 2015).

      D. Positions of the Parties.

      1. Defendants. HES maintains the district court erred in its jury

instructions by “adopting a common law negligence standard” and

denying HES’s affirmative defense. Specifically, HES asserts that under

the ICRA, HES was entitled to an instruction on the Faragher–Ellerth

affirmative defense, which has been adopted by the United States

Supreme Court. HES maintains that it is entitled to the Faragher–Ellerth

defense in this case because the plaintiff’s claims involve a supervisor

and the alleged harassment did not culminate in a tangible employment

action.   Under Faragher–Ellerth, HES asserts entitlement to an

affirmative defense that allows it to show “(a) [HES] exercised reasonable

care to prevent and correct promptly any sexually harassing behavior,

and (b) that [Haskenhoff] unreasonably failed to take advantage of any

preventative or corrective opportunities provided by [HES] or to avoid

harm otherwise.” See Ellerth, 524 U.S. at 765, 118 S. Ct. at 2270.

      HES recognizes that in cases involving coworker harassment, a

different framework applies. HES recognized that in Vance, the Supreme
Court declared, “If the harassing employee is the victim’s co-worker, the

employer is liable only if it was negligent in controlling working

conditions.” 570 U.S. at ___, 133 S. Ct. at 2439.

      But HES claims that a plaintiff in a negligence case involving

coworkers must prove more than the Vance formulation that the

employer is liable only if it was negligent in controlling working

conditions.   Id.   HES adds another element to the negligence claim.

According to HES, in cases involving coworker harassment, the plaintiff

is required to prove not only the presence of harassment that the
                                     104

employer knew or should have known existed, but also that the employer

“failed to take prompt and appropriate corrective action.” McCombs v.

Meijer, Inc., 395 F.3d 346, 353 (6th Cir. 2005). An instruction that the

plaintiff must prove the defendant acted negligently in creating or

continuing a sexually hostile environment is not enough according to

HES.     It claims that the district court was obligated to include its

additional verbal formulation. HES further asserts prejudice arose from

the failure to so instruct. Rivera, 365 N.W.2d at 892.

        2. Haskenhoff. Haskenhoff argues that under the ICRA, a plaintiff

may choose to proceed under either a direct negligence or vicarious

liability theory.   She asserts that she elected to proceed under a

negligence theory, and thus the law related to vicarious liability claims

against an employer is irrelevant.

        Haskenhoff supports her choice-of-theories approach by citing

language of the Supreme Court in Vance, 570 U.S. at ___, 133 S. Ct. at

2434. In Vance, the United States Supreme Court stated “an employer

will always be liable when its negligence leads to the creation or

continuation of a hostile work environment.” Id. at ___, 133 S. Ct. at 2452

(emphasis added).     Haskenhoff further cites Vance for the proposition

that a situation where some harassers are coworkers and others are

supervisors “presents no problem for the negligence standard.”       Id. at

___, 133 S. Ct. at 2451–52; see also Phelan v. Cook County, 463 F.3d

773, 784 (7th Cir. 2006) (declining to sort out who were supervisors

since    sexual   harassment   claim   survived   summary   judgment    via

negligence method); Sharp v. Houston, 164 F.3d 923, 928–29 (5th Cir.

1999) (allowing jury instruction on negligence theory even though

harasser was top manager in plaintiff’s unit).
                                    105

      Because at trial Haskenhoff proceeded only on a direct negligence

theory, she claims that HES was not entitled to the Faragher–Ellerth

defense, which may be utilized only in a vicarious liability case.      See

Johnson v. Shinseki, 811 F. Supp. 2d 336, 348 n.2 (D.C. Cir. 2011);

Curry v. District of Columbia, 195 F.3d 654, 660 (D.C. Cir. 1999).

According to Haskenhoff, the reason for the Faragher–Ellerth defense was

to ensure that employers would not be held automatically liable for

harassment involving supervisors. Faragher, 524 U.S. at 804, 118 S. Ct.

at 2291; Ellerth, 524 U.S. at 763, 118 S. Ct. at 2270. But when vicarious

liability is not asserted, the Faragher–Ellerth framework is inapplicable.

Direct negligence, according to Haskenhoff, is a tried and true method of

litigating sexual-harassment cases.       See Boyle v. Alum-Line, Inc., 710

N.W.2d 741, 748 (Iowa 2006); Farmland Foods, Inc. v. Dubuque Human

Rights Comm’n, 672 N.W.2d 733, 744 (Iowa 2003).

      In addition, Haskenhoff maintains that HES was not prejudiced by

the failure to give HES’s requested Faragher–Ellerth defense instruction.

Haskenhoff argues the plaintiff’s burden under a negligence standard is

higher than that under Faragher–Ellerth.             In a negligence case,

Haskenhoff asserts, the plaintiff must prove the employer was negligent.

In a vicarious liability case, however, the plaintiff does not have to prove

negligence, and the defense has the burden of showing “prompt and

effective” remedial action under Faragher–Ellerth.

      E. The Distinction Between Direct Negligence Claims and

Vicarious Liability Claims Under Federal and Civil Rights State Law.

      1. Distinction between direct negligence and derivative liability.

The federal and state civil rights caselaw clearly distinguishes direct

negligence claims from claims based on vicarious liability.        A direct

negligence approach is generally used in federal cases under Title VII by
                                     106

plaintiffs who seek to thrust liability onto employers for the harassment

they suffered at the hands of coworkers.        The direct negligence cases

stress that employer liability for coworkers “is direct liability for

negligently allowing harassment, not vicarious liability for the harassing

actions of employees.” Williamson v. Houston, 148 F.3d 462, 465 (5th

Cir. 1998); Pierce v. Commonwealth Life Ins., 40 F.3d 796, 804 n.11 (6th

Cir. 1994) (“The term ‘respondeat superior’—which connotes derivative

liability—is an incorrect label for co-worker harassment cases, where the

employer is directly liable for its own negligence.”).

      2. Two types of direct negligence: negligence in the creation and

negligence in the continuation of harassment.            The Supreme Court

explored some elements of a direct negligence claim in Vance, 570 U.S. at

___, 133 S. Ct. at 2434. Vance held a plaintiff could bring a derivative

claim based on vicarious liability for acts of a supervisor if the plaintiff

suffers tangible adverse consequences of the harassment, but that

vicarious liability could not arise if the consequences were intangible. Id.

at ___, 133 S. Ct. at 2439. In Vance, the Supreme Court recognized the

two theories of direct negligence actions, observing that “an employer will

always be liable when its negligence leads to the creation or continuation

of a hostile work environment.” Id. at ___, 133 S. Ct. at 2452 (emphasis

added).

      3. Relevant evidence in fact-based direct negligence actions.      In

discussing direct negligence actions as a distinct alternative to a

derivative claim based on vicarious liability, the Vance Court observed,

“Evidence that an employer did not monitor the workplace, failed to

respond to complaints, failed to provide a system for registering

complaints, or effectively discouraged complaints from being filed would

be relevant.”   Id. at ___, 133 S. Ct. at 2453 (emphasis added).      These
                                    107

evidentiary observations appear to be germane to direct negligence

actions based on a failure to prevent and negligence related to the

continuation of harassment.

      4. Combining coworkers and supervisors in direct negligence

actions. While a direct negligence theory is generally used to affix liability

to the employer when the harassers are solely coworkers, the question

arises as to whether a direct negligence claim can also be made when one

or even all of the harassers are supervisors. A plaintiff may want to use

such a strategy when it is not entirely clear whether the harassers would

be considered coworkers or supervisors.        By assuming the burden of

proving direct negligence, rather than shifting the burden to the

defendant under the derivative approach of vicarious liability, the

plaintiff avoids the risk that the court could ultimately conclude a

harasser was not a supervisor and thus an employer could not be held

derivatively liable on a vicarious liability theory. Thus, plaintiffs are not

forced to litigate harassment cases involving supervisors under a

vicarious liability theory. They may choose to proceed under the more

demanding direct negligence theory.

      There is dicta in support of the notion that supervisors may be

considered coworkers for purposes of a direct negligence claim brought

under Title VII.   In Ellerth, the Supreme Court observed that while a

derivative claim based upon a vicarious liability might be available for

claims against supervisors under certain circumstances, “an employer

can be liable, nonetheless, where its own negligence is a cause of the

harassment.” 524 U.S. at 758–59, 118 S. Ct. at 2267. There is lower

federal and state court authority consistent with the proposition that the

conduct of supervisors may be considered part of a direct negligence

claim brought by a Title VII plaintiff. See, e.g., Rios Da Silva v. One, Inc.,
                                       108

980 F. Supp. 2d 148, 163 (D.P.R. 2013); Nadeau v. Rainbow Rugs, Inc.,

675 A.2d 973, 976–77 (Me. 1996); Hoy v. Angelone, 691 A.2d 476, 481

(Pa. Super. Ct. 1997).

      F. The      Kaleidoscope        of   Federal     Circuit     Model       Jury

Instructions on Direct Negligence in Harassment Cases. A survey of

federal circuit court model jury instructions for harassment claims based

on   direct   negligence   demonstrates         the   kaleidoscope       of   verbal

formulations that may be used in instructing juries on direct negligence

claims. See generally 3C Kevin F. O’Malley et al., Federal Jury Practice

and Instructions § 171:23, at 262–77 (6th ed. 2014) [hereinafter O’Malley

2014] (providing model jury instructions from the federal circuits and

collecting cases on those instructions). Some instructions are long, some

are short. In describing the plaintiff’s burden in showing the employer

was negligent, some use language of reasonableness, some use the

somewhat narrower language of prompt and appropriate or effective

remedial action, and many use both.

      The model instruction for the United States Court of Appeals for

the Third Circuit is detailed and elaborate.           According to the Third

Circuit   model   instruction,   in    sexual    harassment      cases    involving

nonsupervisors, the plaintiff must show that management “knew, or

should have known of the abusive conduct.” Id. at 264. If the plaintiff

proves its case, however, the defendant is allowed an affirmative defense.

Id. at 265.

      Interestingly, though, the affirmative defense, which the defendant

has the burden of proving, is couched in terms of reasonableness. See

id. According to the Third Circuit model instruction, in order to satisfy

the requirements of the affirmative defense, the defendant must show

(1) that it “exercised reasonable care” to prevent the harassment and to
                                        109

promptly correct any harassing behavior, and (2) that the plaintiff

“unreasonably failed to take advantage of any preventive or corrective

opportunities.”       Id.    On the first prong of reasonableness, the Third

Circuit offers a further instruction that a defendant meets that burden

by showing the defendant had an explicit policy against harassment, the

policy was fully communicated to its employees, the policy provided a

reasonable way for plaintiff to make a claim of harassment, and

reasonable steps were taken to correct the problem.            Id.   The Third

Circuit instruction for coworker harassment tends to mix and match

concepts of direct negligence liability with concepts of derivative liability

based on vicarious liability theory as outlined in Faragher–Ellerth. See

id. at 264–65.

       The Fifth Circuit takes a materially different tack in a lengthy

model instruction on direct negligent-harassment claims by coworkers.

3C Kevin F. O’Malley et al., Federal Jury Practice and Instructions

§ 171:23 (6th ed.), Westlaw (database updated Aug. 2016).            Under the

Fifth Circuit instruction for a claim of a hostile work environment

involving coworkers based on direct negligence, the plaintiff must show

the defendant “knew, or in the exercise of reasonable care should have

known, that [the plaintiff] was being [sexually harassed] because of the

[Plaintiff’s sex].”    Id.   The Fifth Circuit instruction states the plaintiff

must show that the harassment was “known by or communicated to a

person who had authority to receive, address, or report the complaint,”

or that the harassment was so “open and obvious” the defendant should

have known of it. Id. In addition, the plaintiff must prove the defendant

failed to take “prompt remedial action” to stop the harassment.             Id.

Interestingly, though, the instruction further defines “prompt remedial
                                     110

action” as conduct “reasonably calculated to stop the harassment and

remedy the situation.” Id.

      The Seventh Circuit model jury instruction eschews the arguably

meandering instruction of the Fifth Circuit for a more direct approach.

O’Malley 2014, at 270–71. In a harassment case involving negligence, a

jury in the Seventh Circuit is instructed that when harassment has been

proved, an employer is liable if it “knew or should have known about the

conduct”   and   “did   not   take   reasonable   steps   to   [correct   the

situation]/[prevent harassment from recurring].” Id. at 271. That is it.

The Seventh Circuit model instruction is quite similar to the marshalling

instruction given by the district court in this case and, compared to the

Fifth Circuit model instruction, has the advantage of simplicity.

      The Eighth Circuit model instruction requires that the plaintiff

show the defendant “knew or should have known” of the alleged conduct

and “the defendant failed to take prompt and appropriate corrective

action.” Id. at 272. Although this instruction differs somewhat from the

instruction in our case, “prompt and appropriate corrective action” does

not seem to be a lesser standard than “reasonableness.” An action that

is not “prompt” might still be considered reasonable by a jury, while an

action that is “appropriate” is surely also reasonable.

      The Ninth Circuit has a longer model instruction for direct

negligence claims, but it comes to essentially the same place as the

Seventh Circuit’s instruction. Id. at 274–75. Under the Ninth Circuit’s

instruction, a plaintiff who proves harassment and seeks to impose

liability on the employer must show that “the defendant or a member of

the defendant’s management knew or should have known of the

harassment and failed to take prompt, effective remedial action

reasonably calculated to end the harassment.”       Id. at 274. The Ninth
                                     111

Circuit instruction further defines who qualifies as management and

states the defendant’s remedial action “must be reasonable and

adequate.” Id. Although more detailed, there is no substantive difference

between the Ninth Circuit instruction and the totality of the district

court’s instruction in this case.

      What these diverse jury instructions demonstrate is that there is

not one “correct” jury instruction in a direct negligence case. They can

vary from the fairly complex instructions used by the Fifth and Ninth

Circuits to the very simple instruction utilized by the Seventh Circuit. It

is clear, however, that the model instructions in the Fifth, Seventh,

Eighth, and Ninth Circuits are consistent with the trial court’s

instruction in this case.

      G. Iowa Caselaw on Negligence Claims.          In the pre-Faragher–

Ellerth cases of Chauffeurs, Teamsters & Helpers, Local Union No. 238 v.

Iowa Civil Rights Commission, 394 N.W.2d 375 (Iowa 1986), and Lynch v.

Des Moines, 454 N.W.2d 827 (Iowa 1990), we considered cases in which

the plaintiff claimed the defendants maintained hostile environments

based on race and sex respectively. In describing one of the elements of

a hostile-environment claim, we stated in Lynch that the plaintiff must

prove “the employer knew or should have known of the harassment and

failed to take prompt and appropriate remedial action.” 454 N.W.2d at

833 (emphasis added). In Chauffeurs, we used a slightly different verbal

formulation, indicating that the plaintiff needs to prove the defendant

knew or should have known of the harassment and “failed to take prompt

remedial action.” 394 N.W.2d at 378 (emphasis added). The cases do not

discuss a difference between “prompt remedial action” or “prompt and

appropriate remedial action.”       In both cases, we held the evidence

sufficient to support the plaintiff’s claims.
                                    112

      In another pre-Faragher–Ellerth case, Vaughn v. Ag Processing, Inc.,

we again were asked to consider a hostile-environment harassment

claim, this time based on religion. 459 N.W.2d 627, 632 (Iowa 1990).

We noted specifically the plaintiff did not assert that “Mueller, as

supervisor, was acting as Ag or that Ag was strictly liable for Mueller’s

actions.”   Id. at 634.   In other words, plaintiff was pursuing a direct

negligence theory and not an agency theory that would give rise to strict

liability against the employer.

      Unlike in Chauffeurs and Lynch, however, we found in Vaughn that

the defendant was entitled to prevail. Id. at 639. We found that while

the defendant knew of the harassment, the employer took prompt

remedial action to remedy the problem.        Id. at 634.   We explained

“prompt remedial action” as placing “a reasonable duty on an employer

who is aware of discrimination in the workplace to take reasonable steps

to remedy it.” Id. at 634 (emphasis added). We noted that whether an

employer takes such reasonable steps to remedy the harassment is a

question of fact.   Id.   We further noted in Vaughn that the employer’s

conduct was “especially reasonable” in light of the evidence which

showed that the employer did not know the plaintiff was a victim of

religious discrimination.    Id. at 635.   Under Vaughn, it seems that

“prompt remedial action” and “reasonableness” are interchangeable

concepts, much like the model instructions in the Fifth and Ninth

Circuits.

      Our first post-Faragher–Ellerth case involving a claim of a hostile

environment was Farmland Foods, 672 N.W.2d 733. In Farmland Foods,

we cited Eighth Circuit precedent for the proposition that in order to

establish a hostile-environment claim, a plaintiff must show the

employer “knew or should have known of the harassment and failed to
                                          113

take proper remedial action.” Id. at 744. We then added, as dictum, a

sentence stating, “When a supervisor perpetrates the harassment, but no

tangible employment action occurred, the employer may assert the

Faragher–Ellerth affirmative defense to avoid liability.” 28 Id. In Farmland

Foods, we concluded the plaintiff failed, on the evidence presented, to

show a hostile environment of racial harassment.                  Id. at 746.      As a

result, the question of whether the employer acted reasonably in

response to the allegedly hostile environment was not considered.

       In Boyle, 710 N.W.2d at 741, we considered whether a plaintiff

established a hostile environment based on sex.                   The district court

concluded the employer knew of the harassment but the employer “did

take steps reasonably calculated to stop the sexual harassment.” Id. at

747 (emphasis added). We also stated that in order to establish liability

for a hostile environment, a plaintiff must show that “the employer knew

or should have known of the harassment and failed to take proper

remedial action.” Id. at 746 (emphasis added) (quoting Farmland Foods,

672 N.W.2d at 744).            We equated the test, however, with “steps

reasonably calculated to end the sexual harassment.”                       Id. at 747

(emphasis added). After canvassing the record, we concluded the record

did not support the trial court’s conclusion that the employer took steps

reasonably calculated to stop the harassment. Id. Because the employer

did not show that it took steps “reasonably calculated to stop the sexual


       28This  dictum is correct as applied to a derivative claim based upon vicarious
liability, but it does not apply to a claim based upon direct negligence. When a
supervisor participates in the harassment, the plaintiff has a choice. The plaintiff may
proceed directly against the employer under a negligence theory and bear the burden of
showing that the employer knew or should have known of the harassment and failed to
stop it, or she may proceed under a vicarious liability theory. If the plaintiff proceeds
under a vicarious liability theory, then the employer is entitled to the Faragher–Ellerth
defense.
                                           114

harassment,” we stated that the employer failed to “implement prompt

and appropriate corrective action.” Id. at 748. In Boyle as in Vaughn,

the shorthand phrases “prompt remedial action” and “prompt and

appropriate action” are equated with steps “reasonably calculated to stop

the sexual harassment.” See id.; Vaughn, 459 N.W.2d at 634.

       H. Discussion: Can the Faragher–Ellerth Defense “Jump the

Track”? 29      At the outset, there is no question under the current

prevailing state and federal caselaw that a plaintiff in a sexual-

harassment case may proceed against an employer on a direct negligence

theory and that the direct negligence theory is distinct from a derivative

claim based on vicarious liability.          I would thus set aside the caselaw

that might relate to derivative claims based on vicarious liability and

focus solely on the law related to direct negligence.

       In direct negligence cases, an employer is entitled to a jury

instruction stating that the plaintiff has the burden of proving the

employer’s negligence “leads to the creation or the continuation of a

hostile work environment.”           Vance, 570 U.S. ___, 133 S. Ct. at 2452.

Under negligence theory, there is no Faragher–Ellerth affirmative defense.

The Faragher–Ellerth affirmative defense, if it is available, applies only in

cases based on vicarious liability. Beckford v. Dep’t of Corr., 605 F.3d

951, 960–61 (11th Cir. 2010) (finding a refusal to give a Faragher defense

instruction proper when plaintiff did not argue vicarious liability). 30

        29See 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 (2006).
       30Although   the parties have assumed in our cases that the Faragher–Ellerth
defense is available under the ICRA, we have not adjudicated the issue in a contested
case. A number of state courts have declined to adopt the Faragher–Ellerth defense
under their state civil rights acts. See, e.g., Myrick, 73 F. Supp. 2d at 98; Chambers,
614 N.W.2d at 918; Pollock, 11 S.W.3d at 767.
                                    115

      As a result, it is important to note that under a claim based on

negligence, the second prong of the Faragher–Ellerth defense, namely,

that the employer may prove the plaintiff failed to avail herself of an

employer’s internal remedy, has no application. Indeed, that is the main

advantage of a negligence claim—specifically, that it can provide a basis

for liability when the harassment victim never formally complained to his

or her employer. See Zayadeen v. Abbott Molecular, Inc., No. 10 C 4621,

2013 WL 361726, at *1 (N.D. Ill. Jan. 30, 2013); Andrew Freeman, A

Bright Line, But Where Exactly? A Closer Look at Vance v. Ball State

University and Supervisor Status Under Title VII, 19 Lewis & Clark L. Rev.

1153, 1161–62 (2013).     The fact that a report to management is not

required is an important feature of direct negligence liability, for many

women are reluctant to step forward to report sexual harassment to

superiors.   See L. Camile Hebert, Why Don’t “Reasonable Women”

Complain About Sexual Harassment?, 82 Ind. L.J. 711, 724–29 (2007).

For instance, some victims may not report harassment for fear of

retaliation from coworkers. See Christopher M. Courts, Note, An Adverse

Employment Action—Not Just an Unfriendly Place to Work: Co-Worker

Retaliatory Harassment Under Title VII, 87 Iowa L. Rev. 235, 236 (2001).

      As a result, HES’s argument that it was entitled to an affirmative

Faragher–Ellerth defense is without merit.     Interestingly, however, the

trial court did instruct the jury on the first prong of the Faragher–Ellerth

affirmative defense in Instruction No. 24. That instruction stated that

HES had the burden of showing that it took prompt and appropriate

remedial action reasonably calculated to end the conduct.             In a

negligence action, however, HES does not have any burden. Rather, the

burden is always on the plaintiff to prove negligence. But HES sought

this instruction and does not object to it now. It may have been wrong,
                                    116

but HES cannot complain about an instruction it sought and does not

challenge on appeal.

       I now turn to the question of whether the district court properly

instructed the jury on what the plaintiff must show to affix liability to

HES based upon direct negligence. The marshalling instruction required

the plaintiff to prove that HES acted “negligently in the creation or

continuance of a hostile work environment.” These words are virtually

lifted verbatim from Vance and are a correct statement of law.

       So far so good. Next, the district court offered an instruction on

negligence.   The district court instructed the jury that “negligence”

means “the failure to exercise ordinary care.” Further, “ordinary care is

the care which a reasonably careful employer would use under all the

circumstances.”

       HES asserts the district court’s formulation is inadequate.        It

insists the district court was required to instruct the jury that the

plaintiff must show not that the employer failed to act reasonably, but

instead that the employer failed to use “prompt and appropriate remedial

action.”

       In short, HES insists on magic words. But not only does our law

not require magic words for jury instructions, but such demanding word

regimes are contrary to our declarations that the trial court “need not

instruct in a particular way so long as the subject of the applicable law is

correctly covered.” Uthe, 542 N.W.2d at 815; Hoekstra, 382 N.W.2d at

110.

       One can only wonder what the difference is between acting

reasonably and acting appropriately.        Federal cases refer to such

arguments with disdain as “word-by-word hairsplitting.”       See Johnson,

280 F.3d at 1314.      Certainly, the difference between the concept of
                                      117

reasonability   in   the   district   court’s   negligence   instruction   and

appropriateness in HES’s formulation is not a basis for reversal here.

      HES’s formulation also uses the term “prompt” while the district

court’s instruction simply referred to reasonability. This is not the stuff

of reversible error. Our caselaw has repeatedly equated prompt remedial

action with action “reasonably calculated to stop the sexual harassment”

or placing a “reasonable duty on an employer who is aware of

discrimination in the workplace to take reasonable steps to remedy it.”

Boyle, 710 N.W.2d at 747; Vaughn, 459 N.W.2d at 634. If anything, the

term “prompt” may be more demanding on the employer than the

reasonability requirement as instructed by the district court.         In any

event, I would find that no reasonable jury would draw a distinction

between reasonable action by an employer to stop the harassment and

prompt and appropriate remedial action.

      In considering the negligence instructions given in this case, the

instructions accurately reflect the law. The instructions were very close

to the model instruction in use in the Seventh Circuit and, in their

totality, are certainly consistent with the model instructions in the Fifth

and Ninth Circuits.        The district court instructed the jury in the

marshalling instruction that Haskenhoff had the burden to prove that

HES “knew or should have known” of the harassment. The instruction

further required Haskenhoff to prove that HES “acted negligently in

creating or continuing a hostile work environment.” The district court

also gave a proper instruction to the jury regarding the meaning of

negligence as a failure to use ordinary care “which a reasonably careful

employer would use in a similar circumstance.”

      The fact the instruction was adequate is demonstrated by the

record in this case. In her opening statement, Haskenhoff told the jury
                                   118

that “an employer has a duty to . . . protect its employees insofar as they

can reasonably do so from sexual harassment.” Further, Haskenhoff told

the jury “if an employer knows about sexual harassment and lets it

continue for a month—let alone several months—and it violates the law

. . . the employer must compensate the victim for whatever harm is

caused.”

      In its opening statement, HES responded that “this is a case about

a lab manager that failed for months or years to report prohibited

conduct and, before HES could act on the information she reported, quit

on the job.” HES further asked the jury “will the evidence show that the

plaintiff followed HES policy . . . and that HES was given a chance to

promptly remedy the conduct that she did report?”         Then in closing

argument, Haskenhoff told the jury,

      Homeland acted negligently . . . . They did not monitor the
      workplace. They did nothing more to protect Tina going
      forward . . . . They did nothing to stop it. They allowed the
      environment to continue and caused great harm to Tina . . . .
      Once the employer knows or should have known about
      sexual harassment, it must take prompt remedial action
      reasonably calculated to end the conduct.

(Emphasis added.) Thus, in the closing statement, Haskenhoff’s counsel

told the jury that the obligation of the employer, once it knew or should

have known about the harassment, was to take “prompt remedial action

reasonably calculated to end the conduct.”

      In its closing statement, HES picked up on the plaintiff’s closing

argument.    HES told the jury that “she needs to prove . . . that HES

failed to act reasonably and responsibly in a way calculated to bring the

conduct of which she complained to an end.             That’s the biggest

question.”

      Further, HES told the jury that
                                        119
      Instruction 17 and 24 go to the last element, if you will.
      What the plaintiff has to prove is that this employer was
      either not doing something a reasonable careful employer
      would do or failed to do something a reasonably careful
      employer would do.

HES further asked the jury “did the company put a plan together that

was reasonably calculated to end the conduct?” According to HES, the

company “wanted it to just stop,” and cited “the evidence here that it

did.” In rebuttal, Haskenhoff told the jury, “You have to conduct prompt,

thorough     and    impartial    investigation   into   any   potential   sexual
harassment, however you become aware of it, whether it is in a written

complaint or not, whether you see or whether it’s just a rumor.”

      What the opening and closing arguments demonstrate is that the

instructions, though brief like the Seventh Circuit model instruction,

were clearly and demonstrably sufficient to allow HES to make the

argument which it claims on appeal it was foreclosed from making. See

Hillrichs, 478 N.W.2d at 74 (finding instructions adequate in which they

allowed consideration of evidence and arguments by counsel on legal

elements).   HES thus advances a battle not over principle, but over

semantics.       Under the instructions, Haskenhoff had the burden of

proving negligence.       As the model instructions of the various circuits

indicate, “prompt and effective remedial action” is another way of

expressing reasonableness. See also Lehmann v. Toys ‘R’ Us, Inc., 626

A.2d 445, 464 (N.J. 1993) (“Effective” remedial measures are those

“reasonably calculated to end the harassment.”); Campbell v. Fla. Steel

Corp., 919 S.W.2d 26, 33 (Tenn. 1996) (stating no precise definition of

“prompt and appropriate remedial action” though in general employers

are   required     to   take   steps   “reasonably   calculated”   to   terminate

harassment); Davis v. Modine Mfg., Co., 979 S.W.2d 602, 607 (Tenn. Ct.

App. 1998) (equating “prompt and appropriate corrective action” with
                                       120

action “reasonably calculated to terminate the alleged harassment”). If

HES could convince a jury that it took prompt and effective remedial

action, it would not be found to have acted unreasonably. There is no

error in the instructions that were based on the language of Vance and

the ISBA Model Jury Instruction defining negligence.

      IV. Causation Instruction on Retaliatory Discharge.

      A. Introduction.

      1. Ambiguity in “because” language.          Causation has been one of

the most controversial aspects of employment law.             The literature is

chock-full     of   alternate   causation    standards,   including   “but   for,”

“motivating factor,” “substantial factor,” “a motivating factor,” and similar

terms.   There are arguments aplenty for each of them.           See generally

Kendall D. Isaac, Is It “A” Or Is It “The”? Deciphering the Motivating-Factor

Standard in Employment Discrimination and Retaliation Cases, 1 Tex.

A&M L. Rev. 55, 73–77 (2013); Schwartz, 150 U. Pa. L. Rev. at 1708

(citing various different approaches to causation requirement).

      By using “because” in Iowa Code section 216.11(2), the section

related to causation in retaliation cases, the Iowa legislature has left the

causation question to the courts to determine as a matter of statutory

construction. Because the statute is ambiguous, we have a number of

plausible interpretive choices.      In exercising our authority to construe

the statute and choose among plausible interpretive choices, we must be

cognizant of the text of the statute, its goals, and the legislative direction

to construe the ICRA broadly to effectuate its underlying purposes. Id.

§ 216.18(1).

      2. Centrality of reporting requirements in Iowa civil rights law and

linkage to substantive violations. Some may regard a retaliation claim as

a second-class claim under the ICRA compared to status-based
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discrimination claims. Retaliation claims, however, are not second-class

claims at all, but instead are claims that strike at the very heart of the

enforcement regime of the ICRA. Under the ICRA, a claimant is required

to file a timely claim with the Iowa Civil Rights Commission in order to

present a claim.    McElroy v. State, 703 N.W.2d 385, 391 (Iowa 2005).

The requirement is mandatory. See id. Thus, being able to file a claim

free from fear of workplace retaliation is directly linked to the ability of a

claimant to vindicate his or her rights under the ICRA. A statute that

forces workers to invoke an administrative process or to cooperate in

subsequent investigations should protect workers who comply. Sandra

F. Sperino, Retaliation and the Reasonable Person, 67 Fla. L. Rev. 2031,

2074 (2015) [hereinafter Sperino, Retaliation].

      As a result, keeping the channels of reporting potential civil rights

claims free, open, and unfettered is crucial to vindicating the substantive

policies of the ICRA.    And, closing the channels of reporting through

retaliation does not only affect the party but harms the system itself. See

Richard Moberly, The Supreme Court’s Antiretaliation Principle, 61 Case

W. Res. L. Rev. 375, 380 (2010) (citing law enforcement rationale). In

addition to protecting the person claiming discrimination, coworkers

participating in investigations need protection if the system is to function

properly. A retaliation claim thus is not a satellite claim on the fringes of

civil rights law. It is an essential claim, without which the ICRA could

not fulfill its laudatory statutory purpose.

      3. Purpose of retaliation provision as affecting causation.          In

considering whether the plaintiff has presented sufficient evidence to

reach a jury on a retaliation claim, much debate has occurred on the

level of causation—a motivating factor, a substantial factor, a but-for

factor, etc.   Aside from level of causation, however, there is another
                                    122

issue. Causation is not a free radical floating around the employment

law universe untethered to any other legal principle. There is a relational

question, namely, causal connection in relation to what, exactly?

      And that is a key question. In the retaliation context, the question

is whether the causation is judged by whether the alleged retaliatory

conduct would likely deter a plaintiff from making a complaint

contemplated by our civil rights laws.      Or, is it judged by whether it

“affects a term, condition, or privilege” of employment? This relational

question is just as important as the calibration of the “level” of causation

required in determining whether a plaintiff has made a sufficient showing

to support a retaliation claim.

      4. Difficulty of fact-finding in retaliation cases. Finally, we should

recognize the evidentiary challenges facing a plaintiff in proving a

retaliation claim.   In retaliation cases, we are necessarily probing into

difficult factual issues involving the motivation of the defendant.     The

evidence related to motivation is almost always in the hands of the

defendant. In addition, the evidence in the modern work place is often

indirect, although “smoking guns” are still occasionally uncovered.

      Further, to the extent causation involves whether a reasonable

person in the position of the plaintiff would be deterred from utilizing

appropriate   reporting   procedures,     the   question   becomes    highly

contextual.   Highly contextual factual issues are rarely amenable to

summary judgment.

      B. Challenged Trial Court Instructions.         With respect to her

retaliation claim, the jury was instructed that Haskenhoff need only

prove that her report of sexual harassment “played a part” in HES’s

decision to take adverse employment action against her to prevail on her

retaliation claim. The jury was further instructed that to “play a part”
                                     123

the report need only have been “a factor” in HES’s employment action

but “need not be the only factor.”

      HES offered an instruction that Haskenhoff’s report of sexual

harassment must have been “a significant factor motivating the

Defendant’s decision to take materially adverse employment action

against Plaintiff” in order for the jury to find in favor of Haskenhoff on

her retaliation claim.

      C. Federal Caselaw on Causation Standard for Civil Rights

Claims.

      1. Causation standard for status-based discrimination. Title VII of

the Civil Rights Act of 1964 provides that it “is an unlawful employment

practice for an employer . . . to discriminate against any individual . . .

because of such individual’s race, color, religion, sex, or national origin.”

42 U.S.C. § 2000e-2(a)(1)–(2) (emphasis added).           Like prior state

legislatures who used the term in their state civil rights acts, Congress

provided no guidance as to the meaning of the ambiguous phrase

“because of” in its status-based discrimination provision. The meaning

of the phrase “because of” has been a major point of controversy in

federal civil rights law.

      Early federal caselaw struggling with the “because of” language

came to mixed results. Many federal courts adopted a relaxed standard

of proof close to a played-a-part standard. See King v. N.H. Dep’t of Res.

& Econ. Dev., 420 F. Supp. 1317, 1327 (D. N.H. 1976). Others adopted

something like a significant-factor test. See Baldwin v. Birmingham Bd.

of Educ., 648 F.2d 950, 956 (5th Cir. 1981); Whiting v. Jackson State

Univ., 616 F.2d 116, 121 (5th Cir. 1980). Some cases embraced a more
                                          124

stringent determinative-factor or motivating-factor test. See Womack v.

Munson, 619 F.2d 1292, 1297 (8th Cir. 1980). 31

        In Price Waterhouse, the United States Supreme Court considered

the   meaning      of   the   term    “because     of”   under     the   status-based

classification provision of Title VII.       490 U.S. at 239–40, 109 S. Ct. at

1785.    A majority of the court concluded the proper approach to the

phrase “because of” was a motivating-factor test. Id. at 258, 109 S. Ct.

at 1795 (plurality opinion); id. at 259, 109 S. Ct. at 1795 (White, J.,

concurring); id. at 276, 109 S. Ct. at 1804 (O’Connor, J., concurring). As

Justice Brennan noted in his plurality opinion, Congress has specifically

rejected an amendment to put the term “solely” in front of the “because

of” language.       Id. at 241, 109 S. Ct. at 1785 (plurality opinion).

According     to   Justice     Brennan,      Congress      intended      to   eliminate

employment decisions in which discriminatory motivation “played a part”

in an employment decision, even if it was not the sole basis for the

decision. Id.

        The Price Waterhouse Court, however, added an important caveat

to its motivating-factor interpretation. In cases of mixed motive, the Price

Waterhouse Court concluded that an employer was entitled to a “same

decision” affirmative defense. Id. at 242, 109 S. Ct. at 1786. In other

words, if an employer could show in a mixed-motive case that the same

decision would have been made absent the discriminatory motivation,

the employer could escape liability. Id.

        In response to the same-decision aspect of Price Waterhouse and

other Supreme Court civil rights decisions, Congress enacted the Civil

        31Womack   appears to have been subsequently modified by later cases. See, e.g.,
Tuttle v. Henry J. Kaiser Co., 921 F.2d 183, 186 n.3 (8th Cir. 1990); Balicao v. Univ. of
Minn., 737 F.2d 747, 750 n.2 (8th Cir. 1984).
                                      125

Rights Act of 1991. Civil Rights Act of 1991, Pub. L. No. 102-166, 105

Stat. 1071 (codified at 42 U.S.C. § 2000e-2(m)). The purpose of the 1991

Act, according to Congress, was to provide “additional protections against

unlawful discrimination in employment.”            Id.   The Civil Rights Act of

1991    added    the   following   section    to   Title   VII:   “[A]n   unlawful

unemployment practice is established when the complaining party

demonstrates that race, color, religion, sex, or national origin was a

motivating factor for any employment practice, even though other factors

also motivated the practice.” 42 U.S.C. § 2000e-2(m) (emphasis added).

This section plainly endorsed the motivating-factor approach of Price

Waterhouse.

       Congress further amended the statute, however, to limit the same-

decision affirmative defense established in Price Waterhouse. Congress

limited the same-decision defense by providing that if the employer

demonstrates that it

       would have taken the same action in the absence of the
       impermissible motivating factor, the court . . . may grant
       declaratory relief, injunctive relief . . . and [limited] attorney’s
       fees and costs . . . and . . . shall not award damages or issue
       an order requiring any admission, reinstatement, hiring,
       promotion, or payment.

42 U.S.C. § 2000e-5(g)(2)(B).      The impact of this amendment provided

employees with greater protection than allowed under the Supreme

Court’s decision in Price Waterhouse.         The same-decision amendment

was thus consistent with the underlying statutory purpose of the Civil

Rights Act of 1991 to “provide additional protections” to employees

suffering from impermissible discrimination.

       Notably, however, the Civil Rights Act of 1991 did not amend the

retaliation provision of Title VII, which also contains a because-of

requirement of causation. What gloss should be put on the because-of
                                   126

language in the retaliation in light of the Price Waterhouse and the Civil

Rights Act of 1991?

      There were a number of possible approaches.          Several courts

concluded that because Congress did not specifically amend the separate

retaliation section in the Civil Rights Act of 1991, the causation standard

existing before the passage of the Act announced in Price Waterhouse

provided the proper approach to causation in retaliation claims.      See,

e.g., Medlock v. Ortho Biotech, Inc., 164 F.3d 545, 552 n.4 (10th Cir.

1999); Woodson v. Scott Paper Co., 109 F.3d 913, 934–35 (3d Cir. 1997);

Tanca v. Nordberg, 98 F.3d 680, 683–84 (lst Cir. 1996).              While

recognizing that the Civil Rights Act of 1991 amendments did not extend

to retaliation claims, these courts took the position that the Supreme

Court’s decision in Price Waterhouse, which involved a status-based

claim, did extend to retaliation claims. These courts thus relied on the

unique nature of the 1991 legislation to uncouple the causation standard

of retaliation-based claims from status-based claims.

      Other federal courts seem to have taken a different approach.

Although short of an express holding, the Seventh Circuit in Veprlinsky

v. Fluor Daniel, Inc., cited the 1991 amendments establishing a

motivating-factor causation test for status-based discrimination as also

applying for treatment of retaliation claims. 87 F.3d 881, 886, 887 n.3

(7th Cir. 1996); see also Hall v. City of Brawley, 887 F. Supp. 1333, 1345

(S.D. Cal. 1995) (finding impermissible motivation, sustaining “same

decision” defense, but affording statutory remedies permitted under Civil

Rights Act of 1991 but not under Price Waterhouse). In de Llano v. North

Dakota State University, the district court concluded that “it would be

illogical and contrary to congressional intent to apply different standards

of proof and accompanying relief provisions to retaliation claims as
                                   127

opposed to discrimination claims.”       951 F. Supp. 168, 170 (D. N.D.

1997).

      The fighting issue in this split was whether the employer was

entitled to a complete same-decision affirmative defense under Price

Waterhouse for retaliation claims, or whether the limitations of the same-

decision defense contained in the 1991 Act were applicable.             See

generally Lawrence D. Rosenthal, A Lack of “Motivation” or Sound Legal

Reasoning? Why Most Courts Are Not Applying Either Price Waterhouse’s

or the 1991 Civil Rights Act’s Motivating-Factor Analysis to Title VII

Retaliation Claims in a Post-Gross World (But Should), 64 Ala. L. Rev.

1067, 1070–73 (2013).

      2. Causation standard for claims under the Federal ADEA at

variance with generally applicable federal status-based causation test. In

Gross, the United States Supreme Court considered the question of

causation in an age discrimination case brought under the ADEA. 557

U.S. at 169–70, 129 S. Ct. at 2346. Unlike Iowa law, which has a unified

statute, age discrimination in the federal regime is addressed in a

separate statutory provision.

      In Gross, the Court considered the meaning of an ADEA provision

which stated,

      It shall be unlawful for an employer . . . to fail or refuse to
      hire or to discharge any individual or otherwise discriminate
      against any individual with respect to his compensation,
      terms, conditions, or privileges of employment, because of
      such individual’s age.

Id. at 182, 129 S. Ct. at 2353 (quoting 29 U.S.C. § 623(a)(1) (emphasis

added)).

      The district court in Gross instructed the jury that liability could

be based upon a determination that age was a motivating factor. 557
                                    128

U.S. at 170–71, 129 S. Ct. at 2347. The jury returned a verdict in favor

of the plaintiff. Id. at 171, 129 S. Ct. at 2347. On appeal, the Eighth

Circuit reversed. Id. The Eighth Circuit ruled that because the plaintiff

did not advance any direct evidence of age discrimination, the plaintiff

was not entitled to a mixed-motive instruction under Price Waterhouse.

Id.   While the question presented focused on whether a plaintiff must

present direct evidence of age discrimination to obtain a mixed-motive

jury instruction under the ADEA, the Supreme Court instead decided to

answer the question of whether a mixed-motive instruction is even

allowed under the ADEA. Id. at 173, 129 S. Ct. at 2348.

       In a 5–4 decision, the United States Supreme Court held that Price

Waterhouse-type burden shifting did not apply to claims brought under

the ADEA. Id. The reasoning of the Gross Court, however, is pertinent to

this case. The Supreme Court stressed that in statutory interpretation,

the court “must be careful not to apply rules applicable under one

statute to a different statute without careful and critical examination.” Id.

at 174, 129 S. Ct. at 2349. The Supreme Court emphasized that Title

VII, after the 1991 amendments, expressly authorized mixed-motive

analysis, while no similar change was introduced into the ADEA.           Id.

Using dictionary definitions, the majority concluded that “because of” in

the ADEA meant “but for” rather than the lesser standard in Price

Waterhouse. Id. at 176–77, 129 S. Ct. at 2350.

       Obviously, the analysis in Gross of “because of” in the ADEA was

at odds with the similar analysis of the exact same term in Title VII in

Price Waterhouse.      There were now two competing approaches to

“because of” in the United States Supreme Court precedents.             With

respect to retaliation claims under Title VII, the question after Gross was

whether the motivating-factor approach to “because of” in Price
                                      129

Waterhouse would apply to retaliation claims under Title VII, or would

the new Gross but-for test for “because of” supplant it.

       3. Causation standard for federal retaliatory claims. In University

of Texas Southwestern Medical Center v. Nassar, another bare 5–4

majority of the Supreme Court held that the proper causation test for a

retaliation claim under Title VII is the but-for test. 570 U.S. ___, ___, 133

S. Ct. 2517, 2534 (2013). The Nassar majority focused on the language

of the Civil Rights Act of 1991.            Id. at ___, 133 S. Ct. at 2526.

Specifically, the majority noted that in 1991, Congress required a

motivating-factor causation test for status-discrimination claims, but did

not expressly extend that standard to retaliation claims. Id. at ___, 133

S. Ct. at 2529. The majority characterized this as a structural choice.

Id.   The majority emphasized the importance of allowing Congress to

choose its structure by differentiating between the status-discrimination

and the retaliation provisions of Title VII.        Id.   The majority then

compared the “because of” language in the ADEA with the “because of”

language in the provision of Title VII. Id. at ___, 133 S. Ct. at 2528–29.

Finding them similar, and finding the rationale of Gross equally

applicable to the retaliation provision, the Supreme Court concluded that

a but-for test for retaliation under Title VII was proper. Id. at ___, 133

S. Ct. at 2533.     Interestingly, by its “structural” interpretation, the

Supreme Court majority used the Civil Rights Act of 1991—which was

designed to provide additional protections—to narrow protections under

the retaliation provision of Title VII.

       The majority also offered a pragmatic justification for the but-for

test. Citing increases in the number of retaliation claims with the EEOC,

the majority stated that it was of “central importance” to the judicial

system to limit the number of claims.         Id. at ___, 133 S. Ct. at 2531.
                                      130

According to the majority, if the Court used a motivating-factor standard,

frivolous claims would increase and judicial resources would be diverted

from genuine efforts to combat discrimination. Id. at ___, 133 S. Ct. at

2531–32.

      Justice    Ginsburg—joined      by    Justices      Breyer,   Kagan,      and

Sotomoyor—dissented.       Id. at ___, 133 S. Ct. at 2534 (Ginsburg, J.,

dissenting).     Justice   Ginsberg      maintained       that   “retaliation    for

complaining     about   discrimination     is   tightly   bonded    to   the    core

prohibition [of discrimination] and cannot be disassociated from it.” Id.

Justice Ginsburg noted with irony that the majority utilized a statutory

revision designed to strengthen the Civil Rights Act to weaken it in

retaliation claims. Id. at ___, 133 S. Ct. at 2540–41. Justice Ginsburg

argued that the 1991 Amendment to the Civil Rights Act applied to “any

employment practice,” a phrase broad enough to include retaliation

claims. Id. at ___, 133 S. Ct. at 2539. She rejected the conservation-of-

resources argument, declaring that the majority was blinded by “a zeal to

reduce the number of retaliation claims filed against employers.” Id. at

___, 133 S. Ct. at 2547.

      D. State Caselaw on Causation Standard for Retaliation

Claims.

      1. Causation test on generally applicable discrimination. The vast

majority of state courts have generally adopted a version of Price

Waterhouse for status-based discrimination claims.               For instance, in

Harvard v. Bushberg Brothers, Inc., the New Jersey court emphasized

that discrimination on the basis of sex is shown if sex played at least a

part and was a causal factor in the failure of the complainant to be

promoted. 350 A.2d 65, 67 (N.J. Super. Ct. 1975). In Navy v. College of

the Mainland, a Texas court noted some division in the federal cases
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about required causation, but ultimately adopted a motivating-factor test

based on the plain meaning of Texas law. 407 S.W.3d 893, 899 & n.3

(Tex. App. 2013).

        2. Causation test regarding retaliation. State courts have adopted

a wide range of tests for claims based on retaliatory conduct by an

employer. They range from the least demanding a-factor test to the most

demanding but-for test.

        In VECO, Inc. v. Rosebrock, the Alaska Supreme Court considered

the standard for causation in a retaliation case.     970 P.2d 906, 920

(Alaska 1999).      The Alaska court noted that under Price Waterhouse,

“because” meant a “motivating part in an employment decision” and held

that a plaintiff was required to meet the same test in a retaliation case

under Alaska law.       Id.   In Mole v. University of Massachusetts, the

Massachusetts court also considered causation in a retaliation case. 814

N.E.2d 329, 338 (Mass. 2004).        The Massachusetts court stated the

plaintiff must show that “a causal connection existed between the

protected conduct and the adverse action.” Id. at 339; see also Hollins v.

Federal Nat’l Mortg. Ass’n, 760 A.2d 563, 579 (D.C. 2000).

        In Ruffin Hotel Corp. of Maryland, Inc. v. Gasper, the Maryland

court considered the proper causation test in a retaliatory discharge

case.    17 A.3d 676, 686 (Md. Ct. App. 2011).       The Maryland court

adhered to a motivating-factor test in the retaliation context. Id. The

Maryland court noted that in Price Waterhouse, the Supreme Court

expressly rejected a but-for test for status discrimination, quoting Price

Waterhouse for the proposition that to construe the words “because of”

as a short hand for “but for” is “to misunderstand them.” Id. at 685.

The Maryland court cited the Supreme Court’s handiwork in Desert

Palace for the proposition that a motivating factor was sufficient to
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establish causation in a Title VII status-classification claim. Id. (citing

Desert Palace, 539 U.S. 90, 123 S. Ct. 2148).

      Similarly, in Mele v. Hartford, the Connecticut Supreme Court

considered the question of what a plaintiff must show in the context of a

claim that the employer retaliated because of the plaintiff’s assertion of

his right to workers’ compensation benefits. 855 A.2d 196, 206 (2004).

The Connecticut court held the plaintiff must show that retaliatory

motive “played a part” in the adverse employment action.       Id. at 211.

Consistent with Mele, a Connecticut trial court expressly declined to

follow the Nassar and Gross cases. Gonska v. Highland View Manor, Inc.,

No. CV126030032S, 2014 WL 3893100, at *7 (Conn. Super. Ct. June 26,

2014).   Instead, the Connecticut court adopted the McDonnell Douglas

burden-shifting approach, coupled with the more lenient motivating-

factor standard, which only requires a showing that a retaliatory motive

contributed or played a part in the adverse action. Id.

      Missouri courts have developed a contributing-factor test for

causation in retaliation cases.   See Turner v. Kan. City Pub. Sch., 488

S.W.3d 719, 723 (Mo. Ct. App. 2016); Williams v. Trans States Airlines,

Inc., 281 S.W.3d 854, 866 (Mo. Ct. App. 2009); McBryde v. Tienour Sch.

Dist., 207 S.W.3d 162, 170 (Mo. Ct. App. 2006). It is not entirely clear

what “contributing” means or how it adds to the analysis.

      Some states have adopted a substantial-factor test. For instance,

in Allison, the Washington Supreme Court adopted a substantial-factor

test for retaliation claims under the Washington Human Rights Act. 821

P.2d at 38. In rejecting the but-for test, the Washington Supreme Court

emphasized the legislative instruction that Washington courts provide a

liberal construction of the Act. Id. at 37. As a result, the Washington

Supreme Court noted the local statute differed from Title VII, which did
                                     133

not contain a liberal-construction directive. Id. at 38. The Washington

Supreme Court concluded that a but-for causation standard would put

an unrealistic burden on plaintiffs, limiting the ability of many plaintiffs

to assert antidiscrimination claims. Id. at 42. On the other hand, the

court rejected a “to any degree” standard advocated by the plaintiff. Id.

According to the Washington court, even a slight retaliatory animus

could be the basis of employer liability. Id. at 42. The Washington court

characterized its substantial-factor test as an intermediate one. Id.; see

also Rymal v. Baergen, 686 N.W.2d 241, 249 (Mich. Ct. App. 2004)

(stating to establish causation in retaliation case, plaintiff must show

illegal action was “a significant factor” in adverse action).

      In the above substantial-factor cases, it is not entirely clear how

stringent the test is. In Lacasse v. Owen, the Oregon court suggests that

the substantial-factor test is about the same as a but-for test. 373 P.3d

1178, 1183 (Or. Ct. App. 2016). This view, of course, is in variance with

the Allison court, which interpreted the substantial-factor test as falling

well short of the but-for test. See 821 P.2d at 35.

      The Supreme Court of California considered the standard for

retaliation claims in Harris v. Santa Monica, 294 P.3d 49, 66 (Cal. 2013).

The Harris court developed a substantial-motivating-factor or -reason

test. Id. The court drew a distinction between a substantial-motivating

factor and a motivating factor.         Id.   According to the court, the

substantial-motivating-factor test ensured that liability would not be

imposed “on evidence of mere thoughts or passing statements unrelated

to the disputed employment decision.” Id.; see Alamo v. Practice Mgmt.

Info. Corp., 161 Cal. Rptr. 3d 758, 769 (Ct. App. 2013) (reversing trial

court judgment when instruction required a motivating factor instead of

a substantial-motivating factor).    The court further decided that if an
                                       134

employer demonstrated the decision would have been made in any event,

that would not be a complete defense, but the plaintiff would still be

entitled to injunctive relief and attorney’s fees. 294 P.3d at 68. In other

words, the court adopted, through judicial decision, the approach in the

Civil Rights Act of 1991 modifying Price Waterhouse.         See also King v.

Cowboy Dodge, Inc., 357 P.3d 755 (Wyo. 2015) (rejecting Nassar and

adopting a “substantial and motivating” test, borrowed largely from

workers’ compensation retaliation cases).

      Some state courts, however, have adopted the very stringent but-

for test for retaliation claims.      For example, in Ashbury University v.

Powell, the Kentucky Supreme Court summarized the majority argument

in Nassar and accepted it under Kentucky law. 486 S.W.3d 246, 254–55

(Ky. 2016). Similarly, in Navy, the court declared, with little analysis,

that there must be a substantial factor, and not just a causal link,

supporting any retaliation claim. 407 S.W.3d at 899; see also Wholf v.

Tremco Inc., 26 N.E.3d 902, 908 (Ohio Ct. App. 2015) (noting Ohio civil

rights statute “modeled after Title VII” and embracing the reasoning of

the Nassar majority). In Gorree v. United Parcel Service, Inc., a Tennessee

appellate court applied the but-for test of Nasser in a retaliation case,

noting the legislature in Tennessee intended Tennessee law “to be

coextensive with federal law.”        490 S.W.3d 413, 439 (Tenn. Ct. App.

2015). None of these cases discussed the impact of the 1991 Civil Rights

Act nor the unique legislative history behind Title VII compared to state

civil rights statutes.

      E. Iowa Caselaw on Causation Under ICRA.

      1. Generally       applicable   causation   standard   for   status-based

discrimination. Our most recent exploration of causation in a claim of

status-based discrimination was DeBoom v. Raining Rose, Inc., 772
                                    135

N.W.2d 1, 13 (Iowa 2009). In DeBoom, we emphasized the causation test

for status-based discrimination under the ICRA was not “the determining

factor” test but rather “a determining factor” test. Id. at 13–14 (emphasis

added).   We further noted it was sufficient to show that status-based

discrimination “played a part in the Defendant’s later actions toward

Plaintiff.” Id. at 13.

      2. Causation in retaliation cases. In Hulme v. Barrett (Hulme II),

480 N.W.2d 40, 42 (1992), we briefly considered the question of proof in

a retaliatory discharge case.      In Hulme II, we declared in a brief

paragraph that the causation standard for retaliation claims under the

ICRA was a “high one.” Id. Citing one case from the Sixth Circuit but

offering no analysis, we declared the “causal connection” required for a

retaliation claim must be a “significant factor” motivating the adverse

employment decision. Id. Notably, we used both the term “significant”

and the term “motivating” to describe the causation requirement.        Id.

After having stated that causation must be a significant factor motivating

the adverse employment decision, we then cited another case from the

Eighth Circuit applying a substantial-factor test. Id.; see Womack, 619

F.2d at 1297.

      We returned to the causation question for retaliation claims in City

of Hampton v. Iowa Civil Rights Commission, 554 N.W.2d 532 (Iowa

1996). The brief discussion of causation in City of Hampton was dicta as

no argument regarding level of causation was presented to the Iowa Civil

Rights Commission.       See id. at 535–36.   In City of Hampton, we cited

Hulme II for the proposition that in retaliation cases, causation is

established by a “significant factor” motivating the adverse employment

decision. Id. We did not cite the motivating-factor language in Hulme II.

We again cited the Womack case, but this time for the proposition that
                                      136

the Eighth Circuit had established a but-for test and not a substantial-

factor test as suggested in Hulme II.          Id.   We also cited, without

elaboration, a Sixth Circuit case under Michigan law supporting a

significant-factor standard.    Id. (citing Polk v. Yellow Freight Sys., Inc.,

801 F.2d 190 (6th Cir. 1986)).

        In Hulme II and City of Hampton, we did not review the underlying

statutory text of the ICRA. We did not engage in a reasoned discussion

of the available interpretative options. We did not consider the impact of

Iowa Code section 216.18(1) requiring that we “broadly interpret the act

to effectuate its purposes.”     In fact, there is no analysis at all, only

ambiguous and inconsistent declarations regarding a substantial-factor

test and a motivating-factor test.

        F. Analysis.      I   begin   the   discussion   of   causation   with

consideration of the proper level of causation required to sustain a

retaliation claim. Under the unified ICRA, the legislature has used the

same term for causation for both status-based discrimination and

retaliation claims, namely, the familiar “because” and “because of”

language.    Iowa Code §§ 216.6(1)(a), .11(2).       Two conclusions may be

drawn from the use of the “because” and “because of” causation

language in both the status-based and the retaliation sections of the

ICRA.

        First, there is a strong textual argument that the level of causation

for status-based claims and retaliation claims should be the same. We

have frequently said that when the same term appears multiple times in

the same statute, it should have the same meaning. State v. Paye, 866

N.W.2d 1, 7 (Iowa 2015); accord Carson v. Roediger, 513 N.W.2d 713,

716 (Iowa 1994); State v. Johnson, 604 N.W.2d 669, 672 (Iowa Ct. App.

1999). This familiar rule has been applied repeatedly in the context of
                                    137

civil rights statutes. See, e.g., EEOC v. Fry’s Elecs., Inc., 770 F. Supp. 2d

1168, 1171 (W.D. Wash. 2011); Patino v. Birken Mfg. Co., 41 A.3d 1031,

1041 (Conn. 2012); San Antonio v. Baer, 100 S.W.3d 249, 253 (Tex. App.

2001); see generally 3B Norman J. Singer & Shambie Singer, Statutes

and Statutory Construction § 76.9, at 205 & n.11 (7th ed. 2011).

        Further, there is no policy reason to question the legislative

judgment to use nearly identical causation language, thereby implying

the same level of causation for retaliation claims as well as for status-

based discrimination.     As indicated above, retaliation claims are not

second-class citizens, but are critical to effective enforcement of the

ICRA.     Policy reasons do not provide a basis for overriding the

legislature’s textual choice.

        Indeed, status-based discrimination and retaliation claims are two

halves of the same walnut.       The success of each depends upon the

efficacy of the other.    Nassar, 570 U.S. at ___, 133 S. Ct. at 2531.

Retaliation for complaining about discrimination is tightly bonded to the

core prohibition and cannot be disassociated from it.         Id.   Thus, in

addition to the textual argument based upon common use of the

because-of causation standard in both status-based discrimination

claims and retaliation provisions under the ICRA, there is also a strong

functional argument for utilizing the same legal standard. Indeed, the

United States Supreme Court, prior to its innovation in Nassar,

repeatedly held that retaliation was a type of status discrimination. See

Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 174, 125 S. Ct. 1497,

1504 (2005).

        This approach represents a refinement, perhaps, of the standard

for retaliation claims under the ICRA used in Hulme II and City of

Hampton.      In these cases, we applied a substantial-factor test for
                                    138

retaliation claims under the ICRA. City of Hampton, 554 N.W.2d at 535–

36; Hulme II, 480 N.W.2d at 43.         I do not believe there is a great

difference between the substantial-factor test in Hulme II and City of

Hampton and the motivating-factor or played-a-part test in DeBoom. But

to the extent there is any distance between the two standards, this case

presents an opportunity to close that distance.

        By adopting a unified approach to status-based and retaliation

causation, we would avoid juror confusion. We would avoid what Justice

Ginsberg noted would be the result in Nassar, namely, that different

causation standards would cause jurors to “puzzle over the rhyme or

reason for the dual standards.”     570 U.S. at ___, 133 S. Ct. at 2535.

Such a double standard would be “virtually certain to sow confusion” in

its practical application.   Id. at ___, 133 S. Ct. at 2546.   The different

standards are made even more problematic by the fact that the status-

based and retaliatory conduct will have an overlapping or “symbiotic

relationship,” as Justice Ginsberg suggested.     Id. at ___, 133 S. Ct. at

2535. Retaliation is simply another form of sex discrimination. Jackson,

544 U.S. at 174, 125 S. Ct. at 1504.          I would thus conclude the

motivating-factor or played-a-part test that applies for status-based

discrimination should also apply in retaliation claims under the ICRA.

        In reaching this conclusion, I note the Nassar case has no bearing

in the interpretation of the ICRA.      The legislative history behind the

status-classification and retaliation provisions of Title VII discussed in

Nassar is fundamentally different than the legislative history behind the

ICRA.     Nassar relied extensively on the difference in congressional

language between causation for status-based claims and causation for

retaliation claims that arose after the enactment of the Civil Rights Act of

1991. 570 U.S. at ___, 133 S. Ct. at 2529 (majority opinion).
                                   139

      In light of the Civil Rights Act of 1991, the text of Title VII is now

fundamentally different than the text of the ICRA with respect to the

causation requirements in status-based and retaliation cases.        Under

Title VII, the motivating-factor test was explicitly incorporated into

status-based discrimination, but the same change was not introduced

into the retaliation section of Title VII. Here, our caselaw has defined

causation in the status-based discrimination clause as being a

motivating factor and the same causation language is used in the

retaliation section of the ICRA.       The reasoning of Nassar is thus

completely inapplicable here.

      Aside from the markedly different legislative history, I would reject

Nassar for other reasons. In particular, I am unpersuaded by the notion

that higher standards for a retaliation claim are required in light of the

number of complaints filed with the EEOC. At the outset, it is odd that a

provision of substantive law should be affected by the number of

administrative complaints made to an agency responsible under a

statute to adjust such claims. If the number of claims decreases to a

trickle, does that provide a basis for lessening the substantive

standards?    Can it be that a substantive legal standard expands and

contracts based upon its use?

      Further, it makes no sense to limit relief for very substantial and

powerful claims, like those in Nassar, in order to also limit frivolous

claims.   Other tools are available.   A charge of discrimination may be

filed under the ICRA only under penalty of perjury. A court may award

attorneys’ fees as a sanction for claims brought in bad faith. Attorneys

who file false claims are subject to ethical sanctions.      See generally

Sandra F. Sperino & Suja A. Thomas, Fakers and Floodgates, 10 Stan. J.

C.R. & C.L. 223, 228 (2014).       Further, there is no evidence that a
                                           140

heightened standard of causation would deter false claims.                     A person

willing to file a false claim is not likely to be affected by a higher

substantive causation standard.

       Further, the mere existence of an increase in EEOC claims is not a

powerful empirical tool. The executive branch, through an amicus brief

filed by the United States Department of Justice, did not advance the

argument and supported the lower motivating-factor standard for

discrimination claims. See Brief for the United States as Amicus Curiae

Supporting Respondent at 7, Nassar, 570 U.S. ___, 133 S. Ct. 2517 (No.

12-484), 2013 WL 1462056, at *7.                 Further, the EEOC—through its

guidelines—advocated a motivating-factor standard.                  U.S. Equal Emp’t

Opportunity Comm’n, EEOC Compliance Manual: EEOC Directives

Transmittal No. 915.003 (May 20, 1998), https://web.archive.org/

web/20040109231351/https://www.eeoc.gov/policy/docs/retal.html

[hereinafter EEOC Manual 1998 Update] (replacing section 614 in the

1991 Manual); see also 2 U.S. Equal Emp’t Opportunity Comm’n, EEOC

Compliance Manual § 614.3(e), at 614–10 (Dec. 1, 1991) (stating the

protected action must be “at least a factor” in the retaliation). Thus, the

agency principally responsible for dealing with workplace discrimination,

the EEOC, did not raise the argument itself about filing of frivolous

claims and siphoning of its resources. 32

       The majority in Nassar believed it was in a better position to judge

the administrative impact of substantive retaliation law on filings. See

        32See also U.S. Equal Emp’t Opportunity Comm’n, Theories of Discrimination:

Intentional and Unintentional Employment Discrimination A–19 (May 1995) (“The
retaliation provisions [of the EPA, ADA, and ADEA] provide exceptionally broad
protection to individuals who file charges or otherwise aid the EEOC’s enforcement
function. It is the EEOC’s policy to expedite the investigation of retaliation charges and
seek injunctive relief, since it has the unique interest of preserving the integrity of its
investigative process and preventing a chilling effect on the willingness of individuals to
protest discriminatory conduct.”).
                                   141

570 U.S. at ___, 133 S. Ct. at 2531–32. Yet, the Nassar Court had no

evidence of the reasons for the increase in retaliation claims.        The

increase in claims may reflect an increased awareness of the availability

of remedies.   And, the failure to report civil rights claims for fear of

retaliation may well continue to be an intractable problem that should

not be exacerbated by imposing a higher substantive law standard on

causation. See Deborah L. Brake & Joanna L. Grossman, The Failure of

Title VII as a Rights-Claiming System, 86 N.C. L. Rev. 859, 897–900

(2008); Deborah L. Brake, Retaliation, 90 Minn. L. Rev. 18, 25–26 (2005)

[hereinafter Brake, Retaliation]; Laura Beth Nelson & Robert L. Nelson,

Rights Realized? An Empirical Analysis of Employment Discrimination

Litigation as a Claiming System, 2005 Wis. L. Rev. 663, 673–75 (2005).

As noted in Crawford v. Metropolitan Government of Nashville & Davidson

County, “[f]ear of retaliation is the leading reason why people stay silent

instead of voicing their concerns about bias and discrimination.”      555

U.S. 271, 279, 129 S. Ct. 846, 852 (2009) (quoting Brake, Retaliation, 90

Minn. L. Rev. at 20).     The higher standard is inconsistent with the

unfettered access to the remedial system espoused in Smith v. Jackson,

544 U.S. 228, 233, 125 S. Ct. 1536, 1540–41 (2005).

      In the end, once the Nassar rhetoric is examined, the majority

appears to have been motivated by “zeal to reduce the number of

retaliation claims filed against employers.” 570 U.S. at ___, 133 S. Ct. at

2547 (Ginsberg, J., dissenting). The lowered protection from retaliation

will tend to defeat the early reporting of harassment claims and their

prompt adjustment.      Ernest F. Lidge, III, The Necessity of Expanding

Protection from Retaliation for Employees Who Complain About Hostile

Environment Harassment, 453 U. Louisville L. Rev. 39, 56 (2014). The

approach in Nassar is inconsistent with the observation in Burlington
                                    142

Northern that “[i]nterpreting the antiretaliation provision to provide broad

protection from retaliation helps ensure the cooperation upon which

accomplishment of the Act’s primary objective depends.” 548 U.S. at 67,

126 S. Ct. at 2414. And certainly the flavor of the majority opinion in

Nassar does not reflect the command of Iowa Code section 218.1(2) to

broadly construe provisions of the ICRA.

      Based on the above reasoning, we conclude the reasoning of

Nassar should be rejected under the ICRA. The “because of” language in

the status-based discrimination provision of the ICRA should be

interpreted the same as the “because of” language for retaliation claims.

      We have not used identical language in our past cases dealing with

causation in retaliation cases. In Hulme II, 480 N.W.2d at 43, and City of

Hampton, 554 N.W.2d at 535, we used the substantial-factor language,

but in DeBoom, 772 N.W.2d at 13, we employed the motivating-factor or

played-a-part test.

      There are two ways to address the apparent difference in the

language of our cases.     One is to simply state that the difference in

language in the cases inconsequential and that the instruction in this

case was sufficient on the law.        That is the position taken by a

commentator after review of the disparate federal caselaw of retaliation

causation.   Martin J. Katz, The Fundamental Incoherence of Title VII:

Making Sense of Causation in Disparate Treatment Law, 94 Geo L.J. 489,

507–10 (2006) (indicating there is no difference between “substantial

factor” and “motivating factor” formulations but, as between the two,

endorsing an “a factor,” “a role,” or “a motivating factor” formulation.).

To the extent there is a difference, however, we would go with our more

recent formulation in DeBoom, 772 N.W.2d at 13, where the issue of level

of causation was a contested issue, and not with the older approach in
                                   143

Hulme II, 480 N.W.2d at 43, and City of Hampton, 554 N.W.2d at 535,

where the question of level of causation was not disputed by the parties.

The DeBoom causation test, to the extent it is different than the

approach in Hulme II and City of Hampton, is more protective of the

channels of communication that are so essential to the effective

enforcement of the ICRA.

      V. Instructions Regarding “Materially Adverse Action” in
Retaliation Cases.

      A. Overview of Issue.       Neither the ICRA nor federal statute

requires a plaintiff make a showing of a “materially adverse action” in

order to support a retaliation claim.    Nonetheless, the United States

Supreme Court has grafted such a requirement onto Title VII and many

courts have followed the Supreme Court’s lead. See Burlington Northern,

548 U.S. at 68, 126 S. Ct. at 2415 (“In our view, a plaintiff must show

that a reasonable employee would have found the challenged action

materially adverse . . . .”); Rachel K. Alexander, Taking the Detour Around

Defending Protected Activity: How Burlington Northern v. Santa Fe

Railway Co. v. White Unnecessarily Complicates Litigation of Retaliation

Claims, 27 Rev. Litig. 333, 350–52 (2008) (describing that the materially-
adverse-action standard has been read into state antidiscrimination

statutes by courts).

      The parties in this case do not contest the basic proposition that a

plaintiff in a retaliation case must show materially adverse action. The

question is, instead, whether the trial court’s instructions accurately

described adverse action necessary to support a retaliation claim under

the ICRA.
                                   144

      B. Challenged Trial Court Instructions.        The district court’s

instruction defined “adverse actions” required to support a retaliation

claim under the ICRA as follows:

            [A]ny action which has material consequences to an
      employee. It is anything that might dissuade a reasonable
      person from making or supporting an allegation of
      discrimination or harassment.

             It includes but is not limited to such employment
      actions as constructive discharge, reprimands or other
      threats of reprimands, a change in opportunities, false
      accusations or complaints, being investigated, being placed on
      performance improvement plan, being placed on probation or
      other actions which adversely affect or undermine the position
      of the employee. It also includes an employer seeking out
      negative feedback on an employee or condoning or
      encouraging other employees to complain about her. You
      should judge whether an action is sufficiently adverse from
      the point of view of a reasonable person in the plaintiff’s
      positions.

(Emphases added.)

      HES had offered the following instruction on adverse action:

            [A]n “adverse employment action” is an action that
      detrimentally affects the terms, conditions, or privileges or
      employment. Changes in duties or working conditions that
      cause no materially significant disadvantage to the employee
      are not adverse employment actions. It includes, but is not
      limited to, employment actions such as termination of
      employment, failure to promote, or any action that would
      discourage a reasonable employee from making a complaint
      of harassment.       Giving an employee a performance
      improvement plan or negative employment review is not
      “adverse employment action” unless they are later used as a
      basis to alter the employee’s terms or conditions of
      employment in a detrimental way. Both the action and its
      context must be examined.

      C. Positions of the Parties.       HES asserts the district court’s

instruction was inaccurate because it includes actions which do not

“materially significantly disadvantage” the employee. According to HES,
                                       145

no court has ever found the actions italicized in the instructions to

amount to an adverse employment action.

      Haskenhoff notes the first paragraph of the instruction provides

that in order to be an adverse action, the action must have “material

consequences” for the employee. Further, the jury found Haskenhoff was

constructively discharged.     Thus, the jury plainly found there was a

legally sufficient adverse action by the employer.       As a result, to the

extent the instruction is flawed, Haskenhoff argues it is harmless.

      D. Federal    Caselaw      and      EEOC    Authority   on    Scope    of

“Materially Adverse Action” in the Context of Retaliation Claims.

      1. Introduction. With respect to retaliation, Title VII states that it

is an unlawful employment practice for an employer “to discriminate

against any of his employees . . . because he has opposed any practice

made an unlawful employment practice by this subchapter, or because

he has made a charge, testified, assisted, or participated in any manner

in an investigation proceeding or hearing under this subchapter.”            42

U.S.C. § 2000e-3(a). The phrase “to discriminate” is not defined by the

statute. Congress left that question for the courts. Unlike the status-

discrimination provision of Title VII, however, the retaliation provision

does not contain the phrase “terms, conditions, or privileges of

employment.”     42 U.S.C. § 2000e-2(a).         The presence of the phrase

“terms,   conditions,   or   privileges   of   employment”    in   the   status-

discrimination section of Title VII, when it is excluded in the retaliation

provision, gives rise to the inference that Congress has made a deliberate

choice.

      2. EEOC 1998 guidelines. The EEOC has confronted the question

of what constitutes adverse action sufficient to support a retaliation

claim under Title VII in revisions to its compliance manual issued in
                                   146

1998. See EEOC Manual 1998 Update. According to the EEOC, while

the “most obvious types of retaliation are denial of promotion, refusal to

hire, denial of job benefits, demotion, suspension, and discharge”

retaliation can also include “threats, reprimands, negative evaluations,

harassment, or other adverse treatment.”        Id.; see EEOC v. Bd. of

Governors of State Colls. & Univs., 957 F.2d 424 (7th Cir. 1992);

Christopher v. Strouder Mem’l Hosp., 936 F.2d 870, 873–74 (6th Cir.

1991); Johnson v. Palma, 931 F.2d 203 (2d Cir. 1991).

      The EEOC, however, rejected the “ultimate employment action”

test adopted by the Eighth Circuit in Ledergerber v. Strangler, 122 F.3d

1142 (8th Cir. 1997), and the “terms and conditions of employment” test

embraced by the Fourth Circuit in Munday v. Waste Management of

North America, 126 F.3d 239 (4th Cir. 1997).         EEOC Manual 1998

Update. According to the EEOC, such tests were “unduly restrictive.” Id.

While the EEOC recognized that “petty slights and trivial annoyances are

not actionable,” it stressed the degree of harm suffered by the individual

“goes to the issue of damages, not liability.” Id. (quoting Hashimoto v.

Dalton, 118 F.3d 671, 676 (9th Cir. 1997)).

      The EEOC justified its approach based on text and policy. On text,

the EEOC emphasized that while the status discrimination of Title VII

states it is unlawful to discriminate against a person with respect to

“terms, conditions, or privileges of employment,” the retaliation provision

of Title VII has no such limitation. EEOC Manual 1998 Update; see 42

U.S.C. § 2000e-2.

      On policy, the EEOC emphasized the primary purpose of the

antiretaliation provisions is to “maintain[ ]unfettered access to the

statute’s remedial mechanisms.”    EEOC Manual 1998 Update; see also

Robinson v. Shell Oil Co., 519 U.S. 337, 345, 117 S. Ct. 843, 848 (1997).
                                     147

According to the EEOC, an interpretation of Title VII “that permits some

forms of retaliation to go unpunished would undermine the effectiveness

of the EEOC statutes and conflict with the language and purpose of the

anti-retaliation provisions.”   EEOC Manual 1998 Update; see generally

Joel A. Kravetz, Deterrence v. Material Harm: Finding the Appropriate

Standard to Define an “Adverse Action” in Retaliation Claims Brought

Under the Applicable Equal Employment Opportunity Statutes, 4 U. Pa. J.

Lab. & Emp. L. 315, 355–65 (2002).

      3. The Burlington Northern case.      Prior to the seminal United

States Supreme Court case of Burlington Northern, the federal courts

splintered on the question of what a plaintiff must show to support a

retaliation claim under Title VII.

      In Ray v. Henderson, the Ninth Circuit outlined the differing

approaches to retaliation claims in the various circuits. 217 F.3d 1234,

1241–42 (9th Cir. 2000). According to Ray, the First, Seventh, Tenth,

Eleventh, and D.C. Circuits all “take an expansive view” of the type of

actions that can be considered adverse employment actions. Id. at 1241;

see Wideman v. Wal-Mart Stores, 141 F.3d 1453, 1456 (11th Cir. 1998);

Knox v. Indiana, 93 F.3d 1327, 1334 (7th Cir. 1996); Corneveaux v.

CUNA Mut. Ins. Grp., 76 F.3d 1498, 1507 (10th Cir. 1996); Wyatt v.

Boston, 35 F.3d 13, 15–16 (1st Cir. 1994); Passer v. Am. Chem. Soc., 935

F.2d 322, 330–31 (D.C. Cir. 1991). In contrast, Ray cited the Second

and Third Circuits as holding adverse action is something that

“materially affects the terms and conditions of employment.” 217 F.3d at

1242; see Robinson v. Pittsburgh, 120 F.3d 1286, 1300 (3d Cir. 1997);

Torres v. Pisano, 116 F.3d 625, 640 (2d Cir. 1997).    Finally, the Ray

court noted the Fifth and Eighth Circuits had adopted the most

restrictive test, namely, the “ultimate employment action” test which
                                      148

required actions such as hiring, firing, promoting, and demoting to

support a retaliation claim. 217 F.3d at 1242; see Mattern v. Eastman

Kodak Co., 104 F.3d 702, 707 (5th Cir. 1997); Ledergerber, 122 F.3d at

1144.

        In 2006, the Supreme Court entered the fray in Burlington

Northern, 548 U.S. at 53, 126 S. Ct. at 2405. Under Burlington Northern,

a plaintiff must show an employment action is materially adverse, “which

in this context means it well might have dissuaded a reasonable worker

from making or supporting a charge of discrimination.” Id. at 68, 126

S. Ct. at 2415.      In so concluding, the court rejected the “terms,

conditions,   or   benefits”   and   the    “ultimate   employment   decision”

standards percolating through the federal courts in the Second, Third,

Fifth, and Eighth Circuits. Id. at 61–63, 126 S. Ct. at 2411–12.

        In Burlington Northern, the Supreme Court adopted a general,

functional approach to the retaliation provision of Title VII. See id. at 68,

126 S. Ct. at 2415. The Burlington Northern Court tied material adversity

directly to the purpose of the retaliation provision of Title VII—

encouraging unfettered access to Title VII.       Id. at 62–63, 126 S. Ct. at

2411–12. In determining whether the employer’s action “might well have

dissuaded a reasonable worker from making or supporting a charge of

discrimination,” the Court instructed that the question be determined

from “the perspective of a reasonable person in the plaintiff’s position

under all the circumstances.”        Id. at 71, 126 S. Ct. at 2417.    Under

Burlington Northern, trial courts are required to examine the specific facts

from someone in the plaintiff’s position, a highly individualized inquiry.

See id.

        Thus, as the Burlington Northern Court repeatedly emphasized,

“context matters” because an “act that would be immaterial in some
                                     149

situations is material in others.”    Id. at 69, 126 S. Ct. at 2416.      The

Supreme Court emphasized “the significance of any given act of

retaliation will often depend upon the particular circumstances.” Id. The

inquiry is fact specific to the workplace and to the individual pressing the

retaliation claim. Id. The plain implication is that except in the most

marginal of cases, because of their fact intensive nature, retaliation

claims should survive summary judgment.

      4. Post-Burlington Northern federal caselaw. Burlington Northern

was something of a bombshell in the employment law world.              As a

general matter, there seemed to be little question that under Burlington

Northern, more retaliation cases would survive summary judgment.

Further, most of the post-Burlington Northern federal caselaw recognized

that in determining whether a plaintiff has suffered disparate treatment,

the “terms, conditions, and privileges of employment” test was not

applicable in retaliation cases. The lower federal courts widely came to

recognize that in retaliation cases, a lesser standard applies. See Powell

v. Lockhart, 629 F. Supp. 2d 23, 41 (D.D.C. 2009) (holding that placing

employee on performance improvement plan was insufficient to support

disparate treatment claim, but could support retaliation claim because of

lesser standard).

      Burlington Northern emphasized the proper test for a retaliation

case was “material adverse action” which “well might have dissuaded a

reasonable   worker     from   making      or   supporting   a   charge    of

discrimination.”    548 U.S. at 68, 126 S. Ct. at 2415.      This feature of

Burlington Northern appears to be lost in some of the cases, which seem

to require tangible impact on “terms, conditions, and privileges of

employment.” See Sutherland v. Mo. Dep’t of Corrs., 580 F.3d 748, 752

(8th Cir. 2009) (rejecting adverse employment action when plaintiff “had
                                   150

no reductions in pay, salary, benefits, or prestige”). And, in other cases,

the test applied by the courts seems to be too high.         For example, in

Deleon v. Kalamazoo County Road Commission, the Sixth Circuit

suggested in a retaliation case that the question was whether a

reassignment without loss of pay was “objectively intolerable” to a

reasonable person. 739 F.3d 914, 919 (6th Cir. 2014). This formulation

seems to be more demanding than a Burlington Northern standard where

the plaintiff must show that a reasonable person “might well have been

deterred” from supporting or filing a charge.

      Many post-Burlington Northern cases recognize that the totality of

the circumstances must be considered when the “might well have

deterred” standard is applied and bright-line declarations about whether

certain   actions   were   sufficient    or   insufficient   were   generally

inappropriate under Burlington Northern.           For example, following

Burlington Northern, the Fifth Circuit in Thompson v. Waco, held that a

change in job responsibilities did not automatically qualify as an adverse

impact, but it could be adverse action depending upon a jury’s view of

the facts. 764 F.3d 500, 504–05 (5th Cir. 2014).

      A related concept is that certain actions individually might not be

sufficient, but cumulatively such actions may arise to adverse action for

purposes of supporting a retaliation claim. For example, in Sanford v.

Main Street Baptist Church Manor, Inc., the Sixth Circuit recognized that

although some of the incidents might not rise to the level of adverse

action, “the incidents taken together might dissuade a reasonable worker

from making or supporting a discrimination charge.” 327 F. App’x 587,

599 (6th Cir. 2009); see also Vega v. Hempsted Union Free Sch. Dist., 801

F.3d 72, 90 (2d Cir. 2015) (finding combination of being assigned absent

students, temporary paycheck reduction, and failure to notify of
                                   151

curriculum claim cumulatively amount to “material adverse action”);

Alvarado v. Fed. Express Corp., 384 F. App’x 585, 589 (9th Cir. 2010)

(holding delayed paychecks, denial of personal time, criticism of work

performance, and shift change were adverse actions); Shannon v.

Bellsouth Telecomm., Inc., 292 F.3d 712, 715–16 (11th Cir. 2002) (stating

reassignment alone is not adverse action, but reassignment, together

with denial of overtime and allocation of a more difficult assignment in

an unairconditioned van, amounted to adverse action); Ridley v. Costco

Wholesale Corp., 217 F. App’x 130, 135 (3d Cir. 2007) (holding while jury

verdict finding demotion was not retaliatory, combination of other events

after demotion, including transfer to warehouse, counseling notices for

minor incidents, and failure to investigate these incidents satisfied

Burlington Northern test); see generally Joan M. Savage, Adopting the

EEOC Deterrence Approach to the Adverse Employment Action Prong in

Prima Facie Case for Title VII Retaliation, 46 B.C. L. Rev. 215, 235–36

(advocating broad case-by-case approach).

      Burlington    Northern   recognized   that   petty   slights,   minor

annoyances, and simple lack of good manners is not enough to establish

material adverse action to support a retaliation claim.      Some federal

courts have regarded this declaration as an invitation to take a laundry-

list approach and declare, as a matter of law, that certain types of

actions never amount to material adverse actions. Other federal cases,

however, are more sensitive to context.

      5. EEOC August 2016 enforcement guidelines on retaliation and

related issues.    In August 2016, the Equal Employment Opportunities

Commission issued its “Enforcement Guidelines on Retaliation and

Related Issues,” superseding its previous guidance in 1998. See EEOC

Enforcement Guidance on Retaliation and Related Issues (Aug. 25, 2016),
                                    152

https://www.eeoc.gov/laws/guidance/retaliation-guidance.cfm

[hereinafter EEOC Enforcement Guidance]. The new guidelines generally

embraced Burlington Northern and provided the commission’s view of

retaliation claims in a post-Burlington Northern world. Id. II.B.1.

      Among other things, the EEOC emphasized that combinations of

incidents could cumulatively amount to a material adverse action even if

the individual incidents, considered alone, might not qualify. Id. The

EEOC further emphasized that under Burlington Northern, potential

retaliatory incidents must be considered in context and not in isolation.

Id.

      The EEOC addressed the question of what type of actions might

rise to the level of a material adverse action. Id. II.B.2. According to the

EEOC, “[t]he most obvious types of adverse actions are denial of

promotion, refusal to hire, denial of job benefits, demotion, suspension,

and discharge.” Id. But the EEOC went on to say,

      Other types of adverse actions may include work-related
      threats, warnings, reprimands, transfers, negative or lowered
      evaluations, transfers to less prestigious or desirable work or
      work locations, and any other types of adverse treatment
      that in the circumstances might well dissuade a reasonable
      person from engaging in protected activity.

Id.

      The EEOC concluded the determination of whether a plaintiff has

made the necessary showing of material adverse action to support a

retaliation claim was fact driven. Id. According to the EEOC,

      A fact–driven analysis applies to determine if the challenged
      employer action(s) in question would be likely to deter
      participation or opposition. To the extent some lower courts
      applying Burlington Northern have found that some of the
      above-listed actions can never be significant enough to deter
      protected activity, the Commission concludes that such a
      categorical view is contrary to the context-specific analysis,
                                   153
      broad reasoning, and specific examples endorsed by the
      Supreme Court.

Id.

      The EEOC also addressed the question of whether a materially

adverse action required harm to the employee. Id. The EEOC concluded

it did not. Id. According to the EEOC, the degree of harm suffered by the

individual “goes to the issue of damages, not liability.”    Id. (quoting

Hashimoto v. Dalton, 118 F.3d 671, 675 (9th Cir. 1997)).

      Finally, the EEOC distinguished between the standard required to
prove a hostile environment claim and the standard to show retaliation.

Id. As noted by the EEOC, “[t]he threshold for establishing retaliatory

harassment is different than for discriminatory hostile environment.” Id.

II.B.3.

      According to the EEOC, harassment sufficient to support a

retaliation claim does not need to be severe or pervasive enough to alter

the terms and conditions of employment. Id.

      E. State Caselaw on Retaliation Requirements.         Neither party

cited any state caselaw on the question of what constituted adverse

action sufficient to support a retaliation claim.   We have been able to

discern no clear pattern in the state caselaw.

      Some state cases recognize the impact of Burlington Northern. For

instance, in Donovan v. Broward County Board of Commissioners, a

Florida court of appeals recognized that Burlington Northern found the

ordinary approach to discrimination cases too limiting in the context of

retaliation claims. 974 So. 2d 458, 461 (Fla. Dist. Ct. App. 2008). The

Donovan court applied the broadened Burlington Northern standard. Id.

      Another case that employs Burlington Northern contextualization is

Ellis v. Jungle Jim’s Market, Inc., 44 N.E.3d 1034 (Ohio Ct. App. 2013).
                                     154

In Ellis, an employee was transferred from the seafood department into a

bagging position after reporting workplace harassment. Id. at 1052. The

plaintiff produced evidence that the transfer significantly diminished her

job responsibilities and that she would learn fewer skills in the bagging

position. Id. at 1053–54. The Ohio court held that she raised an issue of

fact with respect to whether the transfer amounted to a “material adverse

action” by her employer. Id. at 1054.

      Similarly, in Hoffelt v. Illinois Department of Human Rights, a

plaintiff claiming retaliation offered evidence that she was called names

and treated in a demeaning manner, was assigned to a position known

as “a punishment post,” and had her requests for compensatory leave

denied under circumstances in which they were granted in the past. 867

N.E.2d 14, 21 (Ill. Ct. App. 2006). Citing Burlington Northern, the Illinois

court concluded that under the circumstances, she “well might have

dissuaded a reasonable worker from making or supporting a charge of

discrimination.” Id. at 20.

      Another state court has emphasized the need to broadly construe

the retaliation provision in its civil rights legislation. In Albunio v. City of

New York, the court emphasized the retaliation provision would be

construed “broadly in favor of discrimination plaintiffs, to the extent

such a construction is possible.” 847 N.E.2d 135, 137 (N.Y. 2011); see

also Roa v. Roa, 955 A.2d 930, 938 (N.J. Super. Ct. App. Div. 2008)

(adopting Burlington Northern approach).          At least one state court,

however,   has    characterized    the   Burlington   Northern   inquiries   as

ordinarily posing questions of law. In Montgomery County v. Park, the

Texas Supreme Court held that changes in a job position did not support

a retaliation claim. 246 S.W.3d 610, 615–16 (Tex. 2007).
                                      155

      F. Iowa Caselaw on “Adverse Employment Action.”                   We have

considered the meaning of “adverse employment action” 33 in a limited

number of cases.        In most of them we have indicated what the vague

term “adverse employment action” might include, not what it excludes.

In the pre-Burlington Northern case of Channon v. United Parcel Service,

Inc., we noted that “[a] wide variety of actions, some blatant, some

subtle,” can qualify as “adverse employment actions.” 629 N.W.2d 835,

863 (Iowa 2001).       Indeed, we have indicated that whether an adverse

employment action occurred “will normally depend on the facts of each

situation.” Id. at 862. This fact-specific language is consistent with the

strain in the federal law that recognizes, as did Burlington Northern, that

the determination is to be made under all of the facts and circumstances.

See 548 U.S. at 71, 126 S. Ct. at 2417. We cited with approval cases

that found loss of title and committee assignments, transfers, and

reduction of supervisor status as amounting to “adverse employment

actions.” Channon, 629 N.W.2d at 863–64.

      Yet, we have indicated that “[c]hanges in duties or working

conditions that cause no materially significant disadvantages to the

employee are not adverse employment actions.” Id. at 862. Of course,

the Channon formulation that an “adverse employment action” must be a

“materially significant disadvantage,” id., is somewhat circular and not

very helpful.        And, it is inconsistent with the Burlington Northern

standard. In Channon, however, we concluded when the plaintiff offered

evidence tending to show she faced ridicule, a constructive demotion,

      33Burlington  Northern makes it clear that the adverse action might not be
employment related and thus the plaintiff in a retaliation case must show “adverse
action” rather than “adverse employment action.” See 548 U.S. at 57, 126 S. Ct. at
2408. Nonetheless, I will use the nomenclature used by our pre-Burlington Northern
precedents.
                                         156

and open hostility about her lawsuit, the record was sufficient to support

a finding of adverse employment action. Id. at 866.

       The next pre-Burlington Northern Iowa retaliation case is Estate of

Harris, 679 N.W2d 673.             In that case, the district court rather

remarkably concluded that a punch to the chest delivered by a

supervisor that ultimately killed the employee was not an “adverse

employment action” sufficient to support a retaliation claim. Id. at 676.

We reversed, noting it was for the jury to determine whether the action

was simply an act of machismo or should be considered something more

sinister. Id. at 679.

       In our analysis in Estate of Harris, we favorably cited a federal

district court case for the proposition that moving an employee to an

isolated corner might be sufficient to support a retaliation claim. Id. at

678; see Harris v. Richards Mfg. Co., 511 F. Supp. 1193, 1203 (W.D.

Tenn. 1981), aff’d in part and rev’d in part, 675 F.2d 811 (6th Cir. 1982).

We further cited Ray, 217 F.3d 1234, for the proposition that federal

circuit courts were split on how               broadly to determine adverse

employment action. 34 Estate of Harris, 679 N.W.2d at 679. Nowhere in

Estate of Harris, however, did we describe precisely what the appropriate
standard was for determining an “adverse employment action” for

purposes of a retaliation claim.

        34We also cited Farmland Foods for the proposition that materially adverse

employment action embraces a wide variety of facts. 672 N.W.2d at 742. Farmland
Foods involved a claim of a hostile environment, not a retaliation claim. Id. The
substantive standard for establishing a hostile-environment claim is not the same as
that for establishing a retaliation claim. For example, under Title VII, the focus on a
hostile-environment claim is “terms and conditions of employment,” while the focus on
a retaliation claim is whether the action might well reasonably deter an employee from
pursuing a civil rights claim. Burlington Northern, 548 U.S. at 69, 126 S. Ct. at 2415–
16. Yet, the application of both standards generally involve factual inquiries. See
McElroy, 637 N.W.2d at 498–500.
                                   157

      Our last retaliatory discharge case is the pre-Burlington Northern

case of Boyle, 710 N.W.2d 741. In Boyle, the district court found against

the plaintiff on the underlying harassment claim and appeared to believe

this resolution rendered the plaintiff’s alternative claim that she was

discharged in retaliation for making her complaint moot. Id. at 750. We

reversed.   Id. at 752.   In Boyle, however, we did not have occasion to

explore the requirements of retaliatory discharge other than to emphasize

that a retaliatory discharge claim did not depend upon the merits of the

underlying complaint. Id.

      On balance, we should recognize that our pre-Burlington Northern

adverse-employment-action cases did not have the benefit of Burlington

Northern’s key insight that the test for material adverse action in the

context of retaliation claim was whether a reasonable person would likely

be deterred from utilizing complaint procedures, and not the familiar

terms, conditions, and privileges of employment test that applies to

disparate treatment cases.     See 548 U.S. at 73, 126 S. Ct. at 2417.

Thus, cases like Channon embraced what federal law now recognizes is

the wrong test.

      Although our cases reflect superseded federal law, they still

generally recognized the subtlety of the workplace and the need to

consider factual issues related to employment claims in light of the

totality of facts and circumstances. See Channon, 629 N.W.2d at 862.

Our cases further reflect the desirability of jury determinations of

disputed factual issues in the retaliation context. See Estate of Harris,

679 N.W.2d at 678.

      G. Discussion. At the outset, we are obliged to construe the ICRA

broadly to effectuate its purposes.      Iowa Code § 216.18(1).   As has

already been noted, maintaining clear channels for pursuing complaints
                                    158

is critical to the regime established by the ICRA. Cf. Robinson, 519 U.S.

at 346, 117 S. Ct. at 848 (stating purpose of retaliation provision to

maintain “unfettered access to statutory remedial mechanisms”).

        The parties both accept the notion that we must determine what is

a material adverse action for purposes of a retaliation claim under the

ICRA.    I have little hesitance in embracing the approach of Burlington

Northern, the EEOC, and the better reasoned caselaw that the test is

whether a reasonable employer might be deterred from filing a complaint

by the conduct in question. The purpose of a retaliation claim is to keep

the access to the channels of civil rights law clear and open. The test for

retaliation should be tied to its fundamental purpose.

        The test for material adverse action for purposes of retaliation is

thus distinct from the test for an adverse employment action for

purposes of a disparate-treatment claim.     As stated by the EEOC, the

question of tangible harm goes to damages, not to liability, for retaliatory

conduct. To the extent our prior cases suggest otherwise, they should be

overruled.    I would thus specifically reject the approach of the mostly

pre-Burlington Northern Eighth Circuit cases that indicate a material

adverse action must include tangible employment action or must affect

terms and conditions of employment.        See Scott Rosenberg & Jeffrey

Lipman, Developing a Consistent Standard for Evaluating a Retaliation

Case Under Federal and State Civil Rights Statutes and State Common

Law Claims: An Iowa Model for the Nation, 53 Drake L. Rev. 359, 384–85

(2005) (urging adoption of Ninth Circuit standard in Ray). As stated by

the EEOC, in addition to the most obvious adverse actions such as

denial of promotion, refusal to hire, denial of job benefits, demotion,

suspension and discharge,
                                         159
      [o]ther types of adverse action may include work-related
      threats, warnings, reprimands, transfers, negative or lowered
      evaluations, transfers to less prestigious or desirable work or
      work locations, and any other types of adverse treatment
      that in the circumstances might well dissuade a reasonable
      person from engaging in protected activity.

EEOC Enforcement Guidance II B.2.

      I would also agree with Burlington Northern, the EEOC, and the

better reasoned caselaw that the determination of whether a plaintiff has

introduced evidence sufficient to establish a material adverse action is

fact specific and will, in most cases, generate a jury question. Of course,

petty incidents in isolation do not suffice to show a materially adverse

impact, but determining what is so petty that it would not deter a

reasonable person from utilizing complaint procedures is usually best

decided by a diverse jury with a mix of real world experience rather than

by the court. Cf. Bell v. Johnson, 308 F.3d 594, 603–05 (6th Cir. 2002)

(holding unless claimed retaliatory action is truly inconsequential, the

plaintiff’s First Amendment claim should go to the jury); Gallagher v.

Delaney, 139 F.3d 338, 342 (2d Cir. 1998) (noting that federal judges

usually live “in a narrow segment of the enormously broad American

socio-economic spectrum” and generally lack “the current real-life

experience required in interpreting subtle sexual dynamics of the

workplace,      based   on    nuances,     subtle    perception,   and    implicit

communications”).
      We should embrace the notion that while each individual act might

not   provide    sufficient   evidence    of   a   material   adverse   action,   a

combination of relatively petty slights poses a different issue. Ordinarily,

the cumulative weight of multiple or repetitive actions will generate a fact

question for the jury to determine. Sanford, 327 F. App’x at 599; Vega,

801 F.2d at 90; Ridley, 217 F. App’x at 135.
                                        160

       Finally, I would reject the laundry-list notion that various

employment actions such as reprimands or negative job evaluations,

transfers without loss of pay, or “snubbing” may be categorically

regarded as never arising to the level of material adverse action. Take

the negative job evaluation. In some setting, a negative job evaluation

might not matter at all.         A negative job evaluation for an employee

approaching retirement might produce a cynical grunt, but not much

more. On the other hand, a negative job evaluation for an economically

struggling head of household who is anxious to climb the work ladder to

provide a better life for his or her family might reasonably feel quite

different. 35 See, e.g., Walker v. Johnson, 798 F.3d 1085, 1095 (D.C. Cir.

2015) (holding denial of deserved rise in performance rating may be

actionable); Porter v. Shah, 606 F.3d 809, 817–18 (D.C. Cir. 2010)

(stating interim performance of “borderline unacceptable” not materially

adverse when delivered orally, no written record was made, and was

superseded by end of the year review); see generally EEOC Manual 1998

Update § 5.B.2 n.113.        This is precisely the kind of contextualization

called for in Burlington Northern, which noted that a transfer to a night

shift would be inconsequential for some, but not for others. 36 Of course,
an insistence on contextualization is a two-way street.               It applies to

plaintiffs as well as defendants.


       35In one study, ninety-five laws students at the University of Cincinnati were
surveyed about what kind of job actions would dissuade them from filing a civil rights
complaint. See Sperino, Retaliation, 67 Fla. L. Rev. at 2045. In the survey, eighty
percent indicated that a negative evaluation either would or might dissuade them from
pursuing a potential claim. Id.
       36Depending on the context, “snubbing” could easily be regarded by a factfinder
as something that might well have dissuaded a reasonable worker from making or
supporting a charge of discrimination. See B. Glenn George, Revenge, 83 Tul. L. Rev.
439, 443 (2008).
                                      161

      In general, the first paragraph of the instruction accurately

captures the test of material adverse action in the retaliation context. It

emphasizes that material adverse action is action that is likely to deter a

reasonable person from filing a complaint. That is the legal standard I

would adopt under the ICRA.

      The second paragraph of the instruction, however, is problematic.

It offers the unqualified statement that material adverse action includes

a list of actions.   A reasonable jury could interpret the instruction to

mean that if one of the listed actions is present, material adverse action

is necessarily present as a matter of law, end of story. But, as stated

above, the test is whether a reasonable person in the shoes of the

plaintiff might well be deterred from pursuing a civil rights claim.       In

considering this question, as Burlington Northern teaches us, “context

matters.”    Id. at 69, 126 S. Ct. at 2416.    Though each of the listed

actions, in context, separately or cumulatively, might rise to an “adverse

material action” if it met the Burlington Northern test that it “might well

deter” a reasonable person in the shoes of the plaintiff from engaging in

protected activity, a jury is not compelled to make that finding as the

trial court’s instruction might suggest. Id.

      Ordinarily, this instructional error would be prejudicial and require

vacation of the verdict and remand for a new trial. Haskenhoff argues,

however, that any error is cured by the jury’s verdict finding that

Haskenhoff    was    constructively   discharged   by   HES.    Plainly,   a

constructive discharge amounts to a material adverse action. 1 Andrew

J. Ruzicho et al., Employment Practices Manual § 6B:7, Westlaw

(database updated Mar. 2017) (“An actual or constructive discharge

remains the clearest example of an adverse action.”).
                                       162

      But, as pointed out in Chief Justice Cady’s concurrence, there is a

problem with Haskenhoff’s theory that the jury’s verdict on constructive

discharge remedies any potential flaw in the instructions on retaliation.

On questions number one and two, the jury answered in the affirmative

that Haskenhoff proved her case of sexual harassment and retaliation

respectively.     On question number three, the jury answered in the

affirmative     the   question   of   whether   Haskenhoff   was   subject   to

constructive discharge. In response to question number four, the jury

returned a general damage verdict of $100,000 for lost wages and

benefits, $300,000 for emotional distress, and $1,000,000 for the present

value of emotional distress.

      While the jury did find a constructive discharge, it is not clear from

the verdict form whether the jury’s constructive-discharge verdict was

based upon the plaintiff’s claim of sexual harassment found in question

one or whether it was based on the plaintiff’s claim of retaliation in

question two. In order to cure the defect in the retaliation instruction,

we must be able to conclude the jury found a causal relationship-

protected activity giving rise to the retaliation claim and the constructive

discharge.

      From the jury verdict form, however, it is possible the jury believed

sexual harassment in question one, and not retaliation in question two,

was causally related to the constructive discharge. If so, the jury could

have awarded part of the general award damages in this case based upon

the faulty retaliation instruction. See Farmers’ Nat’l Bank of Oskaloosa

v. Stanton, 191 Iowa 433, 438–39, 182 N.W. 647, 650 (1924). Further,

we cannot say as a matter of law that Haskenhoff established a material

adverse action which we have declared ordinarily involves a fact-based
                                      163

determination.   As a result, I agree the judgment of the district court

must be reversed and the matter remanded for a new trial.

      VI. Instructions Regarding Constructive Discharge.

      A. Overview of Constructive Discharge. The application of the

constructive   discharge   doctrine    to   civil   rights   claims   has   been

controversial. See Mark S. Kende, Deconstructing Constructive Discharge:

The Misapplication of Constructive Discharge Standards in Employment

Discrimination Remedies, 71 Notre Dame L. Rev. 39, 41–45 (1995)

[hereinafter Kende] (“[B]y forcing discrimination victims to endure

continuing discrimination, the constructive discharge approach [of a

majority of federal courts] contravenes Title VII’s purposes.”).

      In this case, however, the parties do not contest whether the

doctrine of constructive discharge applies but instead battle over the

substantive contours of constructive discharge. In exploring constructive

discharge, we recognized that while constructive discharge is generally a

demanding doctrine, a too stringent constructive discharge test may

simply be “a sophisticated means of providing undeserved protection to

employers who discriminate.” Id. at 78.

      B. Challenged Instructions on Constructive Discharge.                 The

jury was instructed on constructive discharge as follows: “The employer

need not really want the employee to quit. . . . The employee must show

that she was subjected to sexual harassment or retaliation which made

her believe there was no chance for fair treatment at Homeland.”

      HES had sought to instruct the jury that Haskenhoff had to show

“the Defendant acted with the intent of forcing the Plaintiff to quit, or the

Plaintiff’s resignation was a reasonably foreseeable result of the

Defendant’s actions.” Additionally, HES sought to instruct the jury as

follows:
                                    164
             An employee cannot “quit and sue” and then claim to
      have been constructively discharged. Rather, the conditions
      giving rise to the resignation must be sufficiently
      extraordinary and egregious to overcome the normal
      motivation of a competent, diligent and reasonable employee
      to remain on the job to earn a livelihood and to serve his or
      her employer.      In order to amount to a constructive
      discharge, adverse working conditions must be unusually
      “aggravated” or amount to a “continuous pattern” before the
      situation will be deemed intolerable. Generally speaking, a
      single, trivial or isolate act is insufficient to support a
      constructive discharge claim. Finally, conditions cannot be
      considered intolerable unless the employer has been given a
      reasonable chance to resolve the problem.

      C. Positions of the Parties.

      1. HES. HES asserts the constructive discharge instruction was

erroneous because of the assertion that the employer “need not really

want the employee to quit.”        Further, HES claims the instruction

improperly injected the subjective views of Haskenkoff into the issue.

Further, HES, citing Van Meter Industrial v. Mason City Human Rights

Commission, 675 N.W.2d 503, 511 (Iowa 2004), argues the district court

erred in failing to instruct that “conditions will not be considered

intolerable unless the employer has been given a reasonable chance to

resolve the problem.” Finally, in a footnote, HES challenges the repeated

reference to “fairness” in the instruction.

      2. Haskenhoff. With respect to the instruction regarding the fact

that “the employer need not really want the employee to quit,”

Haskenhoff argues that this language is supported by Van Meter, 675

N.W.2d at 512. While the instruction did refer to fairness, Haskenhoff

states the Van Meter case repeatedly referred to the concept of fair

treatment. Id. at 511–12.

      With respect to the question of whether the instruction was

erroneous because of reference to her subjective feelings, Haskenhoff

notes the instructions, taken as a whole, repeatedly referred to the
                                    165

objective standard for constructive discharge. According to Haskenhoff,

Instruction Nos. 33 and 34 dealing with constructive discharge contained

no less than seven references to the reasonableness standard.

      Haskenhoff also asserts that HES’s proposed instruction that

“conditions will not be considered intolerable unless the employer has

been given a reasonable chance to resolve the problem” was presented in

the instructions.   Haskenhoff notes the instructions stated that the

“conditions . . . must be sufficiently extraordinary and egregious” that

“adverse working conditions must be unusually ‘aggravated’ or amount

to a ‘continuous pattern’ before the situation will be deemed intolerable,”

and “a single, trivial, or isolated act is insufficient to support a

constructive discharge claim.” In any event, Haskenhoff suggests that in

light of the evidence the jury would not have found that the employer did

not have a reasonable chance to resolve the issue under the evidence

adduced at trial.

      D. Federal Caselaw on Constructive Discharge.

      1. Introduction. When applying the law of constructive discharge,

it appears almost universally accepted that the test of whether there is a

constructive discharge is whether working conditions are sufficiently

intolerable that a reasonable person in the position of the employee

would have felt compelled to resign. See 2 Christopher Bello, Litigating

Wrongful Discharge Claims § 7.62 n.3, at 7–260 (2013–2014 Cumulative

Supp.) (collecting cases).   The reasonable-person test is generally an

objective test, but it is qualified by the notion that the reasonable person

must be one “in the position of the employee.” Id.

      2. Intent to create hostile environment.    The federal cases under

Title VII are split on the question of whether a plaintiff in a constructive

discharge case must prove employer intent.       The majority view is that
                                     166

constructive discharge occurs even if the employer did not intend to

create the intolerable working conditions.      See, e.g., Ramsey v. City &

Cty. of Denver, 907 F.2d 1004, 1010 (10th Cir. 1990); Watson v.

Nationwide Ins., 823 F.2d 360, 361 (9th Cir. 1987); Alicea Rosado v.

Garcia Santiago, 562 F.2d 114, 119 (lst Cir. 1977). On the other hand,

some cases hold that employer intent must be proved. See, e.g., Martin

v. Cavalier Hotel Corp., 48 F.3d 1343, 1354 (4th Cir. 1995); Yates v. Avco

Corp., 819 F.2d 630, 636 (6th Cir. 1987); Junior v. Texaco, Inc., 688 F.2d

377, 379 (5th Cir. 1982).

      3. Reasonable chance to work out the problem. The Eighth Circuit

has stated that an employee who quits without giving his or her employer

a reasonable chance to work out a problem is not constructively

discharged. Trierweiler v. Wells Fargo Bank, 639 F.3d 456, 460 (8th Cir.

2011); Vajdl v. Mesabi Acad. of KidsPeace, Inc., 484 F.3d 546, 553 (8th

Cir. 2007).   A similar approach has been embraced by the Fifth and

Eleventh Circuits. Kilgore v. Thompson & Brook Mgt., Inc., 93 F.3d 752,

754 (11th Cir. 1996); Bozé v. Branstetter, 912 F.2d 801, 805 (5th Cir.

1990).

      In Suders v. Easton, the Third Circuit held it was relevant whether

the employee explored alternative avenues to resolve the alleged

discrimination before resigning, but that “a failure to do so will not defeat

a claim of constructive discharge.”        325 F.3d 432, 445–46 (3rd Cir.

2003), vacated on other grounds sub nom Pa. State Police v. Suders, 542

U.S. 129, 124 S. Ct. 2343 (2004). Other federal circuits have found that

the failure to attempt to resolve the problem prior to quitting as only a

factor to be considered by the fact finder in determining whether a

constructive discharge is present.    Lindale v. Tokheim Corp., 145 F.3d

953, 956 (7th Cir. 1998); Levendos v. Stern Entm’t, Inc., 909 F.2d 747,
                                   167

753 (3d Cir. 1990).    A case out of the First Circuit took yet another

position, indicating that staying on the job while seeking redress is

required except in exceptional cases, Lee-Crespo v. Schering-Plough Del

Caribe Inc., 354 F.3d 34, 35 (1st Cir. 2003). One court found such an

exceptional case when an employee correctly believed her termination

was imminent. EEOC v. Univ. of Chi. Hosps., 276 F.3d 326, 331–32 (7th

Cir. 2002).

      One federal court noted the potential tightrope that a plaintiff must

show in proving a constructive discharge claim.       In Bristow v. Daily

Press, Inc., the Fourth Circuit noted that while an employee must show

his working conditions are intolerable, his “desire for reinstatement to

his position belies the claim that intolerable conditions underlay his

resignation.” 770 F.2d 1251, 1256 (4th Cir. 1975). It is surely true that

a   requirement   an   employee   remain   employed    in   an   intolerable

employment environment is a concept in tension with itself.

      E. State Caselaw on Constructive Discharge. A number of state

courts have expressly considered whether an employer must have a

reasonable chance to remedy the situation before a finder of fact may

find that an employee was constructively discharged.        In Pollock, the

court held there was no legal requirement that an employee must

complain of harassment and wait and see what happens in all

circumstances.    11 S.W.3d at 761.    The Pollock court reasoned that a

failure to complain may show the employee was not constructively

discharged, but not in all cases. Id. at 765. In some cases, according to

the court, a failure to complain may indicate that other factors were at

play other than the tolerability of the working conditions. Id. The court

concluded that courts must consider the totality of the circumstances in

determining whether working conditions were, in fact, intolerable.       Id.
                                     168

Later Missouri appellate court cases, however, seemed to abandon the

Pollock approach in favor of a reasonable-chance-to-resolve requirement.

See DeWalt v. Davidson Serv./Air, Inc., 398 S.W.3d 491, 501 (Mo. Ct.

App. 2013); Gamber v. Mo. Dep’t of Health & Senior Servs., 225 S.W.3d

470, 475 (Mo. Ct. App. 2010). Other state courts, however, have followed

the general approach in Pollock.      See, e.g., Charles v. Regents of N.M.

State Univ., 256 P.3d 29, 34–35 (N.M. Ct. App. 2010); Ballinger v.

Klamath Pacific Corp., 898 P.2d 232, 238 (Or. Ct. App. 1995); see also

Binkley v. City of Tacoma, 787 P.2d 1366, 1376 (Wash. 1990).

        A final case of interest is Marten Transportation, Ltd. v. Department

of Industry, Labor, & Human Relations, 491 N.W.2d 96 (Wis. Ct. App.

1992), rev’d, 501 N.W.2d 391 (Wis. 1993).        The Wisconsin court, in a

case noted by commentators, declared that “requiring a discrimination

victim to stay put to mitigate damages [is] like requiring ‘victims’ of legal

malpractice to continue being serviced by their negligent lawyer in order

to give the lawyer the chance to improve his or her skills.” Id. at 199; see

Arthur Young & Co. v. Sutherland, 631 A.2d 354, 362 (D.C. 1993)

(explaining that when working conditions are intolerable, an employee

need not remain in them and attempt to resolve them in order to recover

for constructive discharge); see also Kende, 71 Notre Dame L. Rev. at 53

n.78.    The Marten Transportation case, however, was overruled by the

Wisconsin Supreme Court in a divided opinion. Marten Transp., Ltd. v.

Dep’t of Indus., Labor, & Human Relations, 501 N.W.2d 391, 399 (Wis.

1993).

        F. Iowa Caselaw on Constructive Discharge. In the pre-Suders

case of Van Meter Industrial, we considered constructive discharge under

a local human rights ordinance. 675 N.W.2d at 505. We presented a

basic outline of the legal parameters of a constructive discharge claim,
                                   169

which appear to have been uncontested. Id. at 510–12. Citing an Eighth

Circuit case, we stated that “conditions will not be considered intolerable

unless the employer has been given a reasonable chance to resolve the

problem.” Id. at 511.     But we balanced this observation with the

contrapuntal declaration in the next sentence, stating, “On the other

hand, an employee need not stay if he or she reasonably believes there is

no possibility the employer will respond fairly.” Id. Thus, Van Meter is

ambiguous on the question of whether an employee suffering intolerable

discrimination must remain on the job while the employer investigates.

In any event, Van Meter is not entitled to stare decisis because the

parties agreed on the elements of constructive discharge in their briefs

before the court. See, e.g., Hemingway, 734 F.3d at 335 (holding a prior

case was not precedent on an issue when the issue was not contested);

Goldberger, 209 F.3d at 49 (finding certain cases did not support an

issue when the issue was not contested by the parties nor addressed by

the panel); Fulton Found., 108 N.W.2d at 316–17 (stating a case was not

efficacious on an issue which was not challenged by the parties). In any

event, it remains to be seen whether this conclusion remains good Iowa

law after Suders.

      G. Discussion.

      1. No requirement of wanting employee to quit. As seen above, the

caselaw is divided on the question of whether an employer must desire

the employee to quit before a plaintiff may prove constructive discharge.

I agree with the majority approach, however, that there is no such

subjective legal requirement. I do so for several reasons. The focus on

constructive discharge should be on the perceptions of a reasonable

employee in light of the remedial purposes of the ICRA. I do not think

subjective protestations on the part of the employer should be a defense
                                    170

if the objective evidence demonstrates working conditions would be

considered intolerable by a reasonable person in the shoes of the

plaintiff.   See Ramsey, 907 F.2d at 1010; Watson, 823 F.2d at 361;

Alicea Rosado, 562 F.2d at 119.

       2. Objective test. In Van Meter, 675 N.W.2d at 511, we stated that

the standard was objective and most courts, including the United States

Supreme Court in Suders, have made similar statements. 542 U.S. at

141, 124 S. Ct. at 2351.      And, no party here contests the objective

nature of a constructive discharge claim.

       Therefore, the suggestion in the instruction that constructive

discharge may be shown if the employee subjectively believes conditions

are intolerable is not in accord with the law as agreed upon by the

parties in this case. Although the instruction was imperfect, taken as a

whole, any error was harmless on this point in light of the repeated

reference to reasonability throughout the instructions.         On retrial,

however, the district court might want to eliminate any confusion by

consistently referencing the objective nature of the inquiry.

       3. Reasonable chance to resolve the problem: Can Faragher–Ellerth

jump the track (again)? The last issue is the district court’s refusal to

instruct that the “conditions will not be considered intolerable unless the

employer has been given a reasonable chance to resolve the problem.” At

its core, this is another effort to transplant the thrust of the Faragher–

Ellerth affirmative defense outside the context of vicarious liability. See

Sara Kagay, Applying the Ellerth Defense to Constructive Discharge: An

Affirmative Answer, 85 Iowa L. Rev. 1035, 1050–51 (2000).             This

approach appears to have been embraced by the Eighth and Eleventh

Circuits, but not in the Seventh Circuit. Trierweiler, 639 F.3d at 460;

Lindale, 145 F.3d at 956; Bozé, 912 F.2d at 805. As seen above, there is
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state caselaw from Missouri, New Mexico, and Oregon to the contrary.

Pollock, 11 S.W.3d at 761, Charles, 256 P.3d at 34–35; Ballinger, 898

P.2d at 238.      The caselaw thus presents us with an important

interpretive choice.

      Based on our review of the possible approaches, I think the better

view is not to impose a legal requirement that an employee must give the

employer a reasonable period of time to remedy the problem in all

constructive discharge cases. As pointed out in the caselaw and in the

commentary, this requirement is a Catch-22 in that the plaintiff must

prove conditions are so intolerable that any reasonable person would

quit, while remaining patiently in the workplace to see if an employer can

change its behavior and come up with a remedy. See Gormley v. Coca-

Cola Enters., 109 P.3d 280, 285 (N.M. 2005) (finding fact that employee

gave employer one-month notice before quitting a factor in the employer’s

favor in considering summary judgment on constructive discharge

claim). In addition, requiring a plaintiff to remain in a situation that is

objectively intolerable based upon the employer’s discriminatory conduct

has a cynical if not brutal quality. There seems little point to require an

employee to stay and fight when the employment relationship has been

seriously damaged by discriminatory conduct of the employer. Martha

Chamallas, Title VII’s Midlife Crisis: The Case for Constructive Discharge,

77 S. Cal. L. Rev. 307, 372 (2004) [hereinafter Chamallas].

      Empirical sources confirm that very few victims of sexual

harassment pursue complaints through internal grievance procedures.

Although now somewhat dated, scholarly literature suggests that

workers who suffer harassment who utilize internal channels range from

2.5%–12%. See Chamallas, 77 S. Cal. L. Rev. at 373. Remarkably, even

among persons who ultimately sued their employer for workplace
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harassment, nearly half did not report the harassment and only fifteen

percent did so in a timely manner. Id. The question thus arises as to

whether   a   court   evaluating    reasonable   employee   behavior    in   a

constructive discharge context should require atypical behavior. See id.

And, courts should be cautious in assuming as a matter of law that an

assertive approach which judges on an appellate bench with relative job

security might think reasonable might not be regarded as reasonable by

a jury of lay persons with wide experience in a diverse labor market.

      Finally, forcing persons into internal processes tends to privatize

civil rights enforcement in an environment where sexual harassment may

be considered to be a personal problem for individual women rather than

a systemic issue.     Id.    Internal complaint procedures are thus often

unappealing because of a lack of empathy from decision-makers and the

perceived risks of retaliation. The end result may be for victims to simply

suffer in silence and then quit when conditions get bad. Id. at 379.

      I would thus conclude there is no legal requirement to prevail on a

hostile environment claim that an employer had an opportunity to

resolve the problem. Pollock, 11 S.W.3d at 761; Charles, 256 P.3d at 37;

Ballinger, 898 P.2d at 238.       That said, the failure of an employee to

pursue available remedies with the employer may be evidence for the fact

finder to consider in determining whether a work environment was truly

so intolerable as to satisfy the requirements of a constructive discharge.

See Lindale, 145 F.3d at 955–56; Levendos, 909 F.2d at 1230. It is not,

however, dispositive.       Whether conditions were so intolerable that a

reasonable person would have no choice but to leave employment is “a

heavily fact-driven determination.” Levendos, 909 F.2d at 1230. As a

result, the constructive discharge instruction was not flawed because of

its failure to require as a matter of law that the plaintiff remain in the
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intolerably hostile workplace to allow the employer to attempt to remedy

the problem.

      VII. Conclusion.

      For the above reasons, I would generally conclude the approach of

the district court comported with Iowa law except with respect to the

instruction regarding materially adverse conditions required to support

retaliation.   For this reason, I too would reverse the judgment of the

district court and remand for a new trial.

      Wiggins and Hecht, JJ., join this concurrence in part and dissent

in part. Cady, C.J., joins in part.
