              IN THE SUPREME COURT OF IOWA
                               No. 14–0413

                        Filed December 24, 2015


KAREN McQUISTION,

      Appellant,

vs.

CITY OF CLINTON, IOWA; MARK REGENWETHER;
JEFFREY FARWELL; and JEFFREY HORNE,

      Appellees.



      Appeal from the Iowa District Court for Clinton County, Henry W.

Latham II, Judge.



      Claimant appeals from summary judgment dismissing claims of

pregnancy discrimination under the Iowa Civil Rights Act and equal

protection and due process violations under the Iowa Constitution.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.



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

Des Moines, for appellant.



      Cynthia Sueppel of Scheldrup Blades Schrock Smith P.C.,

Cedar Rapids, for appellees.
                                2

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

Brotherson of Becker & Brotherson Law Firm, Sac City, Katie A.

Ervin Carlson of Babich Goldman P.C., Des Moines, and Emily E.

McCarty of Fiedler & Timmer, P.L.L.C., Urbandale, for amicus curiae

Iowa Association for Justice.
                                    3

CADY, Chief Justice.

      In this case, we are presented with the question whether a city

discriminates under the Iowa Civil Rights Act and the Iowa Constitution

by refusing to accommodate a pregnant employee with light duties when

requested due to her pregnancy.     The district court granted summary

judgment to the defendants, City of Clinton and three of its employees,

finding as a matter of law no discrimination had occurred.         On our

review, we adapt our test for the evaluation of pregnancy discrimination

claims and remand the case to the district court to consider the statutory

civil rights claim under this new standard. We conclude the undisputed

material facts of this case do not support equal protection and due

process claims under the Iowa Constitution. Accordingly, we affirm the

district court in part, reverse in part, and remand for further

proceedings.

      I. Background Facts and Proceedings.

      Karen McQuistion is employed as an engineer and paramedic for

the City of Clinton fire department. She was a ten-year veteran of the

department during the events in question. She began as a firefighter in

2001 and was promoted to her current position in 2008.

      In May 2011, McQuistion informed Fire Chief Mark Regenwether

she was pregnant. McQuistion was in the early stages of pregnancy at

the time. She requested light-duty assignments for the duration of her

pregnancy.     The requested accommodation was based solely on her

pregnancy and the nature of her job and not on any underlying

pregnancy-related medical condition amounting to disability.

      The City of Clinton maintained an administrative policy governing

light-duty assignments.   The policy described the circumstances when

light duty was available to employees, generally authorizing light duty for
                                           4

employees who had been injured on the job and were eligible for workers’

compensation benefits.         This policy controlled light-duty assignments

unless it conflicted with the terms of a collective bargaining agreement.

Under a collective bargaining agreement between police officers and the

City, a police officer who becomes pregnant is entitled to light-duty

assignments. The fire department’s collective bargaining agreement did

not contain a clause expanding light-duty assignments beyond the policy

either to pregnant employees or any other employees suffering temporary

disabilities resulting from off-the-job events.

       The light-duty policy of the City defined light duty as “modified

work for employees injured on the job unable to temporarily return to

their regular classification.” It is work for an employee “who can return

to work but is not yet physically capable of fulfilling the work normally

assigned.” 1 The policy articulates four benefits of light duty:

       a. Getting an employee back to the workplace as soon as
          possible after an on-the-job injury when there is not a
          risk to him/her and others;
       b. Minimizing financial hardship and emotional stress to an
          employee injured on the job;
       c. Retaining qualified and experienced workers;
       d. Minimizing cost of workers’ compensation and other
          related programs.

       Light duty generally involves the modification of the worker’s

normal job duties. For a firefighter, this means conducting inspections,

fire prevention duties, training assignments, and other duties that do not

include the emergency response requirements of the job. These duties

can be performed independent of the normal physical requirements for

       1The   policy provides that any employee refusing a light-duty assignment
consistent with their medical restrictions may lose eligibility for workers’ compensation
benefits during the time of refusal.
                                    5

fire department employees. The normal job duties for an engineer and

paramedic in the fire department include:

      1.    Responding to emergency fire incidents.
      2.    Responding to emergency rescue incidents.
      3.    Responding to hazardous materials incidents.
      4.    Responding to emergency medical incidents.
      5.    Responding to emergency airport incidents.
      6.    Performing required training tasks.
      7.    Performing required maintenance tasks.
      8.    Performing Fire Prevention and Public Education
            Assignments.

      Fire Chief Regenwether denied McQuistion’s request for a light-

duty assignment. He determined she was not entitled to light duty under

the city administrative policy because she did not have a disabling injury

that occurred on the job.

      McQuistion continued to perform her regular job duties as an

engineer and paramedic for the fire department after her request for light

duty was denied. In June, Fire Chief Regenwether met with city officials

in an effort to provide an accommodation for McQuistion, without

success.   The city officials who participated in this meeting and the

decision to deny the request included Jeffrey Farwell, the city attorney,

and Jeffrey Horne, the city administrator.

      By the end of September, McQuistion’s pregnancy had advanced to

the point that she was no longer able to perform her required emergency-

response duties safely and her protective uniform no longer fit her. Her

doctor recommended she stop performing her regular duties. As a result,

McQuistion took a leave of absence from work by using accrued vacation

and sick leave time. She was paid during this time period. Once she

exhausted the vacation and sick leave, however, her leave of absence was
                                              6

unpaid. McQuistion gave birth in January 2012. She returned to her

job as an engineer and paramedic for the fire department in March.

       McQuistion brought a lawsuit against the City of Clinton and the

individuals who participated in the decision to deny her light duty

(collectively   referred    to     as   the        City).    She   alleged   pregnancy

discrimination under Iowa Code section 216.6(2), a violation of her equal

protection rights under article I, section 6 of the Iowa Constitution, and a

violation of her due process rights under article I, section 9 of the Iowa

Constitution.     The City moved for summary judgment.                       It asserted

McQuistion was not entitled to an accommodation as a matter of law. It

claimed the action of the City in denying light-work accommodations was

not discriminatory under the Iowa Civil Rights Act and the Iowa

Constitution because all fire department employees with nonwork-related

disabilities were denied light-duty work. It also claimed the actions of

the City did not violate the due process clause of the Iowa Constitution.

       The district court found McQuistion was unable to show an

inference of discrimination under the Iowa Civil Rights Act because the

City   policy   denies     light   work       to    both    pregnant   employees    and

nonpregnant disabled employees who are not injured on the job.                        It

found the undisputed facts of the case failed to establish pregnancy

discrimination under the Iowa Civil Rights Act or the Iowa Constitution.

It found the policy of the City treated all employees who were not granted

separate rights under a collective bargaining agreement the same. It also

found the policy did not impinge upon McQuistion’s fundamental right to

procreate. McQuistion appealed.

       II. Standard of Review.

       We review district court summary judgment rulings for corrections

of errors at law. Goodpaster v. Schwan’s Home Serv., Inc., 849 N.W.2d 1,
                                           7

6 (Iowa 2014). Summary judgment is properly granted when there is no

genuine issue of material fact and the moving party is entitled to

judgment as a matter of law. Id. We construe the record in the light

most favorable to the nonmoving party. Id. However, to survive a motion

for summary judgment, sufficient facts must be in the record to support

the claim that a reasonable fact finder could find in the nonmoving

party’s favor. See Smidt v. Porter, 695 N.W.2d 9, 15 (Iowa 2005).

       Statutory interpretation is reviewed for errors at law.                State v.

Romer, 832 N.W.2d 169, 174 (Iowa 2013). “If the statute is capable of

being construed in more than one way, one of which is constitutional, we

must adopt the constitutional construction.”                   Hensler v. City of

Davenport, 790 N.W.2d 569, 578 (Iowa 2010).                         Our review of

constitutional claims is de novo.         State v. Groves, 742 N.W.2d 90, 92

(Iowa 2007).

       III. Statutory Analysis.

       The Iowa Civil Rights Act of 1965 makes it an unfair or

discriminatory practice for any person to discriminate in employment

against an employee based on various classifications, including the “sex

. . . or disability of such . . . employee.” Iowa Code § 216.6(1)(a) (2011). 2

In   the    early   years     following    the    enactment,      claims     involving

discrimination based on pregnancy emerged in several cases, even

though pregnancy was not specifically mentioned in the Act as a

protected classification. In 1975, we held that pregnancy constituted a


        2The Iowa Civil Rights Act of 1965 did not originally prohibit discrimination on

the basis of sex or disability. See Iowa Code § 105A.7 (1966). The Act was amended in
1970 to add discrimination on the basis of sex to the statute’s list of prohibited
discrimination. 1970 Iowa Acts ch. 1058 (codified at Iowa Code ch. 105A (1971)).
Disability discrimination was added to the list in 1972. 1972 Iowa Acts ch. 1031
(codified at Iowa Code ch. 601A (1973)).
                                    8

temporary disability and concluded an employment policy that failed to

treat pregnant employees in the same manner as disabled employees

regarding the imposition and use of leave constituted sex discrimination

under the Act. Cedar Rapids Cmty. Sch. Dist. v. Parr, 227 N.W.2d 486,

493, 495–96 (Iowa 1975) (finding the employment policy discriminated

under the Act because it imposed special restrictions on pregnant

employees that did not apply to employees with other conditions). We

subsequently reiterated this position on two occasions in 1978, rejecting

as discriminatory in both cases employment policies that excluded

pregnancy from benefits provided for employees disabled from nonwork

injuries. See Franklin Mfg. Co. v. Iowa Civil Rights Comm’n, 270 N.W.2d

829, 834 (Iowa 1978) (rejecting a group insurance plan that did not cover

pregnancy because it was not an illness or injury); Quaker Oats Co. v.

Cedar Rapids Human Rights Comm’n, 268 N.W.2d 862, 864, 867 (Iowa

1978) (rejecting a plan that specifically excluded pregnancy from

coverage), superseded on other grounds by statute, 1978 Iowa Acts

ch. 1179, § 21 (codified at Iowa Code § 601A.19 (1979)).        These two

decisions rejected the reasoning of the United States Supreme Court

decision in General Electric Co. v. Gilbert, which held that a company

plan that excluded pregnancy from “nonoccupational sickness and

accident benefits to all employees” did not constitute sex discrimination

under Title VII of the Civil Rights Act of 1964 because it did not provide

benefits to one gender that did not accrue to the other, and the failure to

cover pregnancy-related risks did not destroy the presumed parity of the

benefits and render it discriminatory.   429 U.S. 125, 128, 138–39, 97

S. Ct. 401, 404, 409–10, 50 L. Ed. 2d 343, 349, 355–56 (1976),

superseded by statute, Pregnancy Discrimination Act of 1978, Pub. L. No.

95-555, 92 Stat. 2076 (codified at 42 U.S.C. § 2000e(k) (2012)).       The
                                        9

Court took the view that the plan did not discriminate based on sex

because, in the final analysis, the same protection provided for men was

provided for women. Id. at 138–39, 97 S. Ct. at 409–10, 50 L. Ed. 2d at

355–56.    Both Franklin Manufacturing and Quaker Oats made it clear

that the Iowa Civil Rights Act would be construed differently than the

Federal Civil Rights Act was in Gilbert by instead treating pregnancy

discrimination as sex discrimination. Franklin Mfg. Co., 270 N.W.2d at

831; Quaker Oats Co., 268 N.W.2d at 866–67. Therefore, under the Iowa

Civil Rights Act, terms and conditions under an employment disability

policy must apply to pregnant employees the same as they apply to all

other employees. See Parr, 227 N.W.2d at 494 (finding no viability in a

differentiation between pregnancy and “other disabling conditions which

qualify an employee for sick (disability) pay”).

      In   response    to    Gilbert,   Congress   enacted   the   Pregnancy

Discrimination Act of 1978 (PDA) to extend Title VII protections to

pregnant women as a subset of sex discrimination.            See Deborah L.

Brake & Joanna L. Grossman, Unprotected Sex: The Pregnancy

Discrimination Act at 35, 21 Duke J. Gender L. & Pol’y 67, 74–75 (2013).

Congress rejected the approach taken in Gilbert and set a course more in

line with the approach taken under the Iowa Civil Rights Act. Congress

did this by adding new language to the definitions section of Title VII. Id.

at 75–76; see 42 U.S.C. § 2000e(k). First, the amended Act declared the

“ter[m] ‘because of sex’ . . . include[s] . . . because of or on the basis of

pregnancy, childbirth, or related medical conditions.”             42 U.S.C.

§ 2000e(k). Second, it added a clause providing that “women affected by

pregnancy . . . shall be treated the same for all employment-related

purposes . . . as other persons not so affected but similar in their ability

or inability to work.”      Id.   Thus, Congress added pregnancy to the
                                     10

definition of sex discrimination and gave further structure to the process

of identifying discrimination in the context of pregnancy. See Cal. Fed.

Sav. & Loan Ass’n v. Guerra, 479 U.S. 272, 285, 107 S. Ct. 683, 691, 93

L. Ed. 2d 613, 626 (1987) (indicating the second clause was intended to

“illustrate how discrimination against pregnancy is to be remedied”).

      The Supreme Court recently discussed the scope of the rights

provided to pregnant employees under the PDA in Young v. United Parcel

Service, Inc., 575 U.S. ___, 135 S. Ct. 1338, 191 L. Ed. 2d 279 (2015). In

Young, the Court found the discrimination analysis under the PDA

consists of two key components.      First, it found the Act only requires

pregnant employees to be treated the “same” as “other persons” in

similarly situated jobs with a similar ability (or inability) to work. Id. at

___, 135 S. Ct. at 1350, 1353, 191 L. Ed. 2d at 294, 297–98; see also id.

at ___, 135 S. Ct. at 1357–59, 191 L. Ed. 2d at 302–04 (Alito, J.,

concurring) (discussing how to determine a comparator group for the

disparate treatment analysis). The Court observed that the clause did

not broadly declare that pregnant employees needed to be treated “the

‘same’ as ‘any other persons.’ ”     Id. at ___, 135 S. Ct. at 1350, 191

L. Ed. 2d at 294 (majority opinion). As a result, the Court rejected the

notion that the PDA gave pregnant employees “an unconditional most-

favored-nation status” that required employers who provided a disability

accommodation to any disabled worker or a specific group of disabled

workers to unconditionally provide the same accommodation to all

pregnant workers with comparable limitations. Id. at ___, 135 S. Ct. at

1349–50, 191 L. Ed. 2d at 293–94. Importantly, the Court found nothing

from the history and background of the Act to suggest Congress intended

for the PDA to alter the approach of the law or to impose a “new

legislative mandate” to require more favorable treatment for pregnant
                                   11

employees. Id. at ___, 135 S. Ct. at 1350, 191 L. Ed. 2d at 294 (quoting

H.R. Rep. No. 95–948, at 3–4 (1978)). Rather, the Court required each

claimant make a prima facie case that they were treated differently from

those similar in ability or inability to work using the framework

established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93

S. Ct. 1817, 1824, 36 L. Ed. 2d 668, 677–78 (1973):

      Thus, a plaintiff alleging that the denial of an
      accommodation constituted disparate treatment under the
      Pregnancy Discrimination Act’s second clause may make out
      a prima facie case by showing, as in McDonnell Douglas, that
      she belongs to the protected class, that she sought
      accommodation, that the employer did not accommodate
      her, and that the employer did accommodate others “similar
      in their ability or inability to work.”

Young, 575 U.S. at ___, 135 S. Ct. at 1354, 191 L. Ed. 2d at 298 (quoting

42 U.S.C. § 2000e(k)).

      After establishing the criteria for a claimant to show a prima facie

case, the Young Court turned to the question of what the employer was

required to show. Id. The Court observed that the body of law built by

the courts over the years governing disparate treatment claims generally

permits an employer to maintain employment policies that may harm

members of a protected class as long as the policies are not intended to

harm the class and “the employer has a legitimate, nondiscriminatory,

nonpretextual reason” for the different treatment. Id. at ___, 135 S. Ct.

at 1350, 191 L. Ed. 2d at 294.      Once the employer has proffered a

legitimate, nondiscriminatory reason, the claimant has the chance to

show that the reason offered is mere pretext to disguise discriminatory

intent. Id. at ___, 135 S. Ct. at 1354, 191 L. Ed. 2d at 299. The Court

placed limits on what could constitute the reason, noting it “normally

cannot consist simply of a claim that it is more expensive or less

convenient to add pregnant women to the category of those (‘similar in
                                     12

their ability or inability to work’) whom the employer accommodates.” Id.

at ___, 135 S. Ct. at 1354, 191 L. Ed. 2d at 298 (quoting 42 U.S.C.

§ 2000e(k)). The Court further explained that a claimant could reach the

jury “by providing sufficient evidence that the employer’s policies impose

a significant burden on pregnant workers” when the reason is “not

sufficiently strong to justify the burden.” Id. at ___, 135 S. Ct. at 1354,

191 L. Ed. 2d at 299.       This was illustrated with the example that a

claimant can raise a genuine issue of material fact showing a significant

burden “by providing evidence that the employer accommodates a large

percentage of nonpregnant workers while failing to accommodate a large

percentage of pregnant workers.” Id.

      Accordingly, the PDA does not mandate employers provide

pregnant employees with benefits such as light-duty assignments, but

rather requires an examination of the facts and circumstances in each

individual case whether the employer was treating the pregnant

employee the same as others “similar in their ability or inability to work.”

See id. at ___, 135 S. Ct. at 1353–54, 191 L. Ed. 2d at 298 (quoting 42

U.S.C. § 2000e(k)) (requiring each “plaintiff to make out a prima facie

case of discrimination”).

      The path to legal recognition and prohibition of pregnancy

discrimination in Iowa began in 1972 when the Iowa Civil Rights

Commission (ICRC), established under the Iowa Civil Rights Act of 1965,

promulgated a rule that classified pregnancy-related disabilities as

temporary disabilities for job-related purposes.    Davenport Cmty. Sch.

Dist. v. Iowa Civil Rights Comm’n, 277 N.W.2d 907, 909 (Iowa 1979)

(discussing the promulgation of administrative rule 4.10 on pregnancy

discrimination in 1972). As with the approach later taken by Congress

under the PDA in 1978, and following the lead of federal regulations
                                       13

promulgated earlier in 1972 by the Equal Employment Opportunity

Commission, the ICRC first declared, “Disabilities caused or contributed

to by pregnancy . . . are, for all job-related purposes, temporary

disabilities . . . .”   Iowa Departmental Rule 4.10(2) (1973); see also 29

C.F.R.    § 1604.10     (1973).    Second,   the   ICRC   declared    that     the

“employment policies and practices involving . . . the availability of . . .

benefits and privileges . . . shall be applied to disability due to pregnancy

. . . on the same terms and conditions as they are applied to other

temporary disabilities.” Iowa Departmental Rule 4.10(2).

       In 1987, our legislature amended the Iowa Civil Rights Act to add a

section    governing      employment    policies   relating   to     pregnancy,

substantively tracking with the 1980 version of the administrative rule

promulgated by ICRC. Compare Iowa Code § 601A.6(2) (1989), with Iowa

Admin. Code r. 240—3.10 (1980). Specifically, the first section declares

that an employment policy that excludes employees from employment

because     of    the    employee’s   pregnancy    constitutes     prima     facie

discrimination. See Iowa Code § 216.6(2)(a) (2011); Iowa Admin. Code

r. 161—8.55(1) (2011). The second provision contains two clauses. See

Iowa Code § 216.6(2)(b); Iowa Admin. Code r. 161—8.55(2).                  It first

declares that “[d]isabilities caused . . . by the employee’s pregnancy . . .

are, for all job-related purposes, temporary disabilities and shall be

treated as such under any health or temporary disability insurance or

sick leave plan available in connection with employment.”            Iowa Code

§ 216.6(2)(b). Second, it declares that

       employment policies and practices involving matters such as
       the commencement and duration of leave . . . and other
       benefits and privileges . . . shall be applied to a disability due
       to the employee’s pregnancy . . . on the same terms and
       conditions as they are applied to other temporary
       disabilities.
                                       14

Id.   A 1980 amendment adding a third provision to the rule was

subsequently adapted into the statute by the legislature in 1987, making

a disability caused by a legal abortion a temporary disability under a

health, temporary disability, or sick leave plan.          Id. § 216.6(2)(c); see

Iowa Admin. Code r. 161—8.55(3).

      The statute then goes beyond the administrative rule to add two

additional    provisions   governing    employment         policies    relating       to

pregnancy.       It makes it illegal for an employer to “terminate the

employment of a person disabled by pregnancy because of the employee’s

pregnancy.”      Iowa Code § 216.6(2)(d).      Finally, the statute requires

employers to grant employees who are disabled by pregnancy a leave of

absence for up to eight weeks if adequate leave is not otherwise available

under an available health, temporary disability, or sick leave plan. Id.

§ 216.6(2)(e).   The question for us is whether our legislature intended

this statute to grant all pregnant employees greater rights than those

guaranteed under the PDA.

      The two clauses within section 216.6(2)(b) form the heart of this

litigation. McQuistion contends these clauses grant broader protection

for pregnant employees than available under the PDA. She specifically

asserts that section 216.6(2)(b) expresses a legislative mandate that any

employment policy maintained by an employer in Iowa that allows light

duty for any disabled employees must also unconditionally apply to

pregnant     employees.       Consequently,        she    claims      an        employer

discriminates against pregnant employees by failing to include them

unconditionally in a disability policy applicable to any disabled

employees.       McQuistion   primarily     uses    the    language        of    section

216.6(2)(b) and the timing of the enactment of the section to support her
                                    15

claim.     We first address the argument dealing with the timing of the

enactment of section 216.6(2).

         The amendment to the Iowa Civil Rights Act that added the

provisions governing pregnancy as section 216.6(2) was enacted shortly

after the United States Supreme Court decided California Federal Savings

& Loan Ass’n v. Guerra, 479 U.S. 272, 107 S. Ct. 683, 93 L. Ed. 2d 613

(1987). McQuistion claims section 216.6(2) was enacted as a response to

Guerra to implement broader protections and rights for pregnant

employees in Iowa than provided under the Federal Civil Rights Act. In

Guerra, the Court held that the PDA did not preempt state laws, but only

established “a floor beneath which pregnancy disability benefits may not

drop—not a ceiling above which they may not rise.” 479 U.S. at 285, 107

S. Ct. at 691, 93 L. Ed. 2d at 626 (quoting Cal. Fed. Sav. & Loan Ass’n v.

Guerra, 758 F.2d 390, 396 (9th Cir. 1985)). Thus, McQuistion argues

that our legislature could have only believed the floor established by the

PDA was too low and enacted its own version of a pregnancy

discrimination law to raise the bar to give pregnant employees in Iowa

greater protections.

         The five provisions of Iowa Code section 216.6(2) enacted by our

legislature did provide some greater rights to pregnant employees than

declared under the PDA. See Iowa Code § 216.6(2). Thus, we agree with

McQuistion that the timing of the 1987 enactment supports the

proposition that our legislature intended to provide guidance that is more

definite to Iowa employers than found under the PDA.        The language

used by the legislature supports this intent.      For instance, section

216.6(2)(e) mandates employers grant up to eight weeks leave of absence

for employees disabled due to pregnancy, a specific mandate benefiting

pregnant employees not provided under the PDA. Id. It gives pregnant
                                            16

employees a special status in Iowa relating to a leave of absence. Yet, the

question is whether the legislature extended this special status to

benefits such as light-duty assignments. Thus, we turn to consider the

argument by McQuistion that the first clause of section 216.6(2)(b) gives

pregnant     employees      a    special    status   that   requires   a   light-duty

accommodation.

      No provision in section 216.6(2) specifically requires employers

provide    all   pregnant       employees    light-duty     assignments    or   other

accommodations.        Instead, section 216.6(2)(b) declares, “Disabilities

caused . . . by . . . pregnancy . . . are, for all job-related purposes,

temporary disabilities and shall be treated as such under any health or

temporary disability insurance or sick leave plan available in connection

with employment.” Id. § 216.6(2)(b). McQuistion claims this provision

means any sick-leave policy provided by an employer that allows light

duty for any group of disabled employees must apply to all pregnant

employees.       Since the City in this case did maintain a policy that

permitted light-duty assignments for employees who were injured on the

job and for pregnant police officers, McQuistion asserts that the statute

mandates the same accommodation be available to all other pregnant

employees.

      The language of section 216.6(2)(b) does not support a broad

mandate according all pregnant employees special benefits. McQuistion

simply reads too much into the statutory language. The first sentence

makes two declarations.            First, it declares a disability caused by

pregnancy or related condition to be a temporary disability.                      Id.

Pregnancy alone does not trigger the protections of section 216.6(2)(b);

the statute requires a disability that is “caused or contributed to” by the

pregnancy or related condition for the protections to apply. Id. Second,
                                             17

it declares a pregnancy-related disability must be treated as a temporary

disability under an employment plan or policy governing temporary

disabilities, not that an employer must treat the pregnancy-related

disability as all other disabilities under the statute. 3 Id. However, the

sentence does not address how the policy or plan must treat pregnant

employees not experiencing pregnancy-related disabilities. Instead, that

issue was addressed by the second sentence of section 216.6(2)(b). This

clause provides:

       [E]mployment policies and practices involving matters such
       as the commencement and duration of leave . . . and other
       benefits and privileges . . . under any health or temporary
       disability insurance or sick leave plan . . . shall be applied to
       a disability due to . . . pregnancy . . . on the same terms and
       conditions as they are applied to other temporary
       disabilities.

Id.

       Yet, this language does not readily answer the more difficult

question at the center of this case: whether an employment plan for

benefits complies with the statutory requirement to be applicable to

disabilities due to pregnancy on the same terms and conditions as other

temporary      disabilities    when      a   gender-neutral       term     or   condition

applicable to all disabilities under the plan excludes a class of temporary

disabilities that includes disabilities caused by pregnancy. See id.; see

also Young, 575 U.S. at ___, 135 S. Ct. at 1351, 191 L. Ed. 2d at 295.

This was the same situation faced by the Court in Young under the


       3This    differs from the PDA, which requires all pregnant women “affected by
pregnancy” or related conditions “be treated the same for all employment-related
purposes . . . as other persons not so affected but similar in their ability or inability to
work.” 42 U.S.C. § 2000e(k). The Iowa statute is drawn more narrowly, requiring
“[d]isabilities caused or contributed to by the employee’s pregnancy, miscarriage,
childbirth, and recovery therefrom” and limiting the benefits to those provided for other
temporary disabilities. Iowa Code § 216.6(2)(b).
                                          18

language of the PDA. See Young, 575 U.S. at ___, 135 S. Ct. at 1347–48,

191 L. Ed. 2d at 291–92. The Iowa statute only demands that a light-

duty policy be applied to pregnancy-related disabilities “on the same

terms and conditions” as the policy is applied to other temporary

disabilities. Iowa Code § 216.6(2)(b).          This clause does not specifically

cover the situation in this case in which the terms and conditions for

light duty applicable to all temporarily disabled employees result in the

exclusion of all disabled employees who did not become disabled through

a   work-related     injury,    including      employees    disabled     because     of

pregnancy or related conditions.            Instead, it is clear our legislature

intended for the question whether a particular term or condition

applicable to all disabilities serves to discriminate against disabilities due

to pregnancy to be decided under a different analysis.

       Our legislature has impliedly indicated approval of the use of the

McDonnell Douglas test to address employment policies that potentially

discriminate against pregnant employees by mirroring language used in

the analytical approach applied in that case.              See McDonnell Douglas

Corp., 411 U.S. at 802, 93 S. Ct. at 1824, 36 L. Ed. 2d at 677–78

(requiring a claimant establish a prima facie case of discrimination).4


       4The  McDonnell Douglas analysis is not the only one used in discrimination
cases, but has long been used in cases in which a facially neutral policy is being
challenged as pretext for discrimination. See, e.g., Hayes v. Shelby Mem’l Hosp., 726
F.2d 1543, 1547–48 (11th Cir. 1984) (discussing when a pretext theory applies). We
have also used a test from Price Waterhouse v. Hopkins, 490 U.S. 228, 241–42, 109
S. Ct. 1775, 1786, 104 L. Ed. 2d 268, 282 (1989), superseded by statute, Civil Rights
Act of 1991, Pub. L. No. 102-166, 105 Stat. 1075, when the plaintiff can “present
credible evidence of conduct or statements of supervisors which may be seen as
discrimination sufficient to support an inference that the discriminatory attitude was a
motivating factor.” Vaughan v. Must, Inc., 542 N.W.2d 533, 538–39 (Iowa 1996)
(describing the McDonnell Douglas and Price Waterhouse methods of analysis in an age-
discrimination case). Following that inference, the employer has a chance to prove the
same decision would have been made without the discriminatory motive. Boelman v.
Manson State Bank, 522 N.W.2d 73, 78 (Iowa 1994). A third theory of discrimination
                                        19

Using this analytical framework, a claimant who seeks to show disparate

treatment under an employment policy that does not facially exclude the

protected   group     must    first   establish    a   “prima   facie”    case   of

discrimination based on employer actions that infer discrimination

because of the protected characteristic.           See Furnco Constr. Corp. v.

Waters, 438 U.S. 567, 575–76, 98 S. Ct. 2943, 2949, 57 L. Ed. 2d 957,

966 (1978). Section 216.6(2)(a) provides that an “employment policy or

practice which excludes from employment applicants or employees

because of the employee’s pregnancy is a prima facie violation of this

chapter.” Iowa Code § 216.6(2)(a). The burden-shifting analysis based

on “prima facie” discrimination was entrenched in the law by the time

the statute was enacted.          See Woodbury County v. Iowa Civil Rights

Comm’n, 335 N.W.2d 161, 165 (Iowa 1983) (using McDonnell Douglas

analysis in a racial discrimination case under the Iowa Civil Rights Act);

King v. Iowa Civil Rights Comm’n, 334 N.W.2d 598, 601–02 (Iowa 1983)

(applying McDonnell Douglas analysis in religious discrimination case

under the Iowa Civil Rights Act); see also State v. Boggs, 741 N.W.2d

492, 503 (Iowa 2007) (“We . . . assume our legislature was familiar with

the existing state of the law when it enacted [the statute] . . . .”).

Furthermore, we have also adopted the framework when indirect

evidence is used to infer discrimination and have specifically applied it to

pregnancy discrimination. See Smidt, 695 N.W.2d at 14–15. Finally, the

Supreme     Court    explicitly    adopted   the    framework    for     pregnancy

discrimination cases alleging disparate treatment under the PDA in

Young, 575 U.S. at ___, 135 S. Ct. at 1353–54, 191 L. Ed. 2d at 298.

___________________
analysis was used in Pippen v. State, 854 N.W.2d 1, 22–27 (Iowa 2014), in which we
analyzed racial discrimination claims under the disparate impact theory.
                                     20

      Thus, we reject the argument by McQuistion that the legislature

established as facially discriminatory any exclusion of a pregnant

employee from any policy or plan that provides benefits for any other

temporary disability. Instead, our legislature only established that the

exclusion of pregnant employees and applicants by an employment policy

or practice because of their pregnancies constituted prima facie evidence

of discrimination.     Iowa Code § 216.6(2)(a).       Even under section

216.6(2)(a), the employer may then come forward with a legitimate,

nondiscriminatory reason for the exclusion that the claimant can rebut

with evidence that the proffered reasons are pretextual.         Smidt, 695

N.W.2d at 15. Employment policies and practices that do not expressly

target pregnant employees or applicants may still result in disparate

treatment, and employees affected in such a way may show a prima facie

case using indirect evidence under the McDonnell Douglas framework.

See Young, 575 U.S. at ___, 135 S. Ct. at 1345, 191 L. Ed. 2d at 288–89.

      Overall, our legislature intended to provide institutional protection

by placing pregnant employees who become unable to complete their job

duties due to a pregnancy-related disability on equal footing with other

employees who become unable to perform their regular job duties

because of any other temporarily disabling bodily condition.       See Iowa

Code § 216.6(2)(b). This equal footing was established by declaring any

disability arising out of pregnancy and related conditions to be a

temporary disability and requiring that all disability policies be applied to

pregnancy-related and nonpregnancy-related disabilities “on the same

terms and conditions.”     Id.   Second, if this structural protection still

results in the exclusion of pregnant employees from employment because

of their pregnancies, our legislature declared the exclusion to be prima

facie evidence of discrimination. Id. § 216.6(2)(a). By identifying a prima
                                          21

facie case of discrimination in section 216.6(2)(a) when actions are taken

“because of the employee’s pregnancy,” id., our legislature necessarily

signaled its intent for disparate treatment claims by pregnant employees

to be resolved through an analytical framework that requires the

employer to offer a legitimate, nondiscriminatory reason to exclude

pregnant employees. Thus, we find the legislature intended that same

analytical framework to apply in cases in which the evidence tending to

prove discrimination based on pregnancy is indirect.                    The declared

prima facie approach necessarily revealed an intent by the legislature to

permit the employer to overcome a prima facie pregnancy discrimination

claim, either established under the statute or shown through the

McDonnell Douglas framework, based on legitimate reasons for excluding

pregnant employees and to permit the employee to show the proffered

reasons were pretextual. See McDonnell Douglas, 411 U.S. at 802–03, 93

S. Ct. at 1824, 36 L. Ed. 2d at 677–78. This approach ultimately reveals

our legislature sought to balance the competing rights and interests of

employers and employees at stake in light of the weight of the burden

imposed on pregnant employees by exclusion from the policy and the

strength of the neutral reason for the employer to justify the exclusion of

pregnant employees. 5


        5Discrimination against the disabled is different from most other forms of

discrimination because the disability itself can impact the ability of the person to
perform the duties of the job. Goodpaster, 849 N.W.2d at 16–17. If a person is not
qualified for the job, a prima facie case of discrimination cannot be established. Id. at
14. As a result, in order to eliminate discrimination against the disabled, the law
generally requires an employer to provide reasonable accommodations that permit the
person to perform the essential duties of the job. Id.; see also Iowa Admin. Code
r. 161—8.27(6). We have not extended that requirement to temporary disability cases.
See Vincent v. Four M Paper Corp., 589 N.W.2d 55, 61 (Iowa 1999) (including a
permanency analysis as an important factor in a disability discrimination claim under
the statute). The extension of a duty to reasonably accommodate to include temporary
disabilities, including pregnancy, is laden with policy considerations normally reserved
                                          22

       This approach is not only consistent with the language of the

statute,    as    well   as   the   approach     we    have    taken      to   analyzing

discrimination claims in this state, it is also consistent with the

approach taken under federal law.              See Young, 575 U.S. at ___, 135

S. Ct. at 1353–54, 191 L. Ed. 2d at 298–99. The language of the PDA

differs from the language of section 216.6(2), but the concepts at play

parallel each other and support similar outcomes.

       This outcome largely disposes of the arguments by the City. The

City’s statutory argument tracked those made by UPS before the

Supreme Court in Young—that the employer need not accommodate

disability caused by pregnancy unless it falls within specifically defined

categories singled out for accommodation. See id. at ___, 135 S. Ct. at

1344, 191 L. Ed. 2d at 288.           The City argued McQuistion’s treatment

under the policy should only be compared with how the City treats those

suffering from a disability arising outside of employment.                 The district

court, without the benefit of the Young decision at the time, agreed the

narrow classification was the proper comparison group.                    Yet, as with

Young, the statutory remedy provided in section 216.6(2) would be

rendered moot and defeat the purpose and intent of the legislature if we

permitted        such    an   easy     way     for    employers      to    evade     the

antidiscrimination statute.          See id. at ___, 135 S. Ct. at 1353, 191

L. Ed. 2d at 298–99.          We therefore remand to the district court to

evaluate McQuistion’s claim under the standard articulated in Young,


___________________
for the legislative branch of government. Indeed, our legislature has considered
precisely this issue in the past two general assemblies, with bills introduced that would
amend section 216.6(2) to require employers to provide reasonable accommodations to
pregnant employees. See S.F. 313, 86th G.A., 1st Sess. (Iowa 2015); S.F. 308, 85th
G.A., 1st Sess. (Iowa 2013).
                                            23

comparing her with all those temporarily disabled, not just those injured

off the job.

       IV. Equal Protection Claim.

       McQuistion’s first constitutional claim, intertwined with her

discrimination claim, is an equal protection challenge under article I,

section 6 of the Iowa Constitution. 6            “[E]qual protection demands that

laws treat alike all people who are ‘similarly situated with respect to the

legitimate purposes of the law.’ ” Varnum v. Brien, 763 N.W.2d 862, 882

(Iowa 2009) (quoting Racing Ass’n of Cent. Iowa v. Fitzgerald, 675 N.W.2d

1, 7 (Iowa 2004) [hereinafter RACI]). To prove an equal protection claim,

the claimant must first establish disparate treatment and then the policy

reasons for the classification are scrutinized.                Id. at 879–80.        Equal

protection claims “require[] an allegation of disparate treatment, not

merely disparate impact.” King v. State, 818 N.W.2d 1, 24 (Iowa 2012).

       The district court found that McQuistion failed to offer sufficient

evidence that the City treated her less favorably than it treated other

similarly situated City employees.            It found the equal protection claim

failed because McQuistion failed to show she suffered disparate

treatment as a matter of law. In addressing this issue, we observe the

City did not raise any argument that a constitutional claim was not

available as a companion remedy or that the Civil Rights Act provides the

exclusive remedy under state law.                  Instead, the City argued that

McQuistion did not make a prima facie case of discrimination nor did she

show the classification unrelated to the reasons behind the policy. Thus,

       6We    take this opportunity to note that under the Iowa Constitution, our equal
protection law arises out of the confluence of article I, section 1 and article I, section 6.
Article I, section 1 protects individuals’ rights, while article I, section 6 prevents the
government granting any citizen or class of citizens privileges or immunities not granted
to all citizens on the same terms. Iowa Const. art I, §§ 1, 6.
                                      24

we proceed to consider the equal protection claim in light of the

arguments raised.

      The equal protection analysis used by the district court failed to

properly consider the critical aspect of the right to equal protection that

the law itself be equal. See Varnum, 763 N.W.2d at 882–83. The district

court essentially held McQuistion failed to show any disparate treatment

because she was not similarly situated to the employees covered under

the City policy. It found the primary purpose of the policy was to get

employees receiving workers’ compensation, who were unable to perform

their normal work duties because of a work injury but capable of

performing light-duty work, back to work earlier.        Consequently, the

district court reasoned that McQuistion was not similarly situated to

those employees covered by the policy, and she failed as a matter of law

to show she was subjected to any disparate treatment.

      The problem with this analysis is that it excludes any examination

of whether the purpose of the law is legitimate. See id. The district court

only considered the purpose of the policy when defining the classification

imposed by the policy.     This approach caused the classification to be

defined too narrowly and foreclosed any real analysis to determine if the

purpose of the policy at least satisfied rational-basis scrutiny.

      McQuistion     did   identify   groups    of   temporarily    disabled

employees—pregnant police officers and City employees injured on the

job—that were provided light-duty accommodations.          She also offered

evidence that she was similarly situated to those groups with respect to

the purpose of the employment policy. This evidence showed she was

not just similarly situated to City employees who became temporarily

disabled off the job, but was similarly situated to all City workers with

temporary disabilities that prevent them performing their regular duties.
                                     25

In this respect, we recognize McQuistion does not need to show she was

similarly situated in all respects to those injured on the job.        Thus,

construing the record in the light most favorable to McQuistion under

the summary judgment standard, sufficient evidence of disparate

treatment has been put forth to raise a question for the jury on the

threshold issue, and McQuistion’s claim needs to be evaluated based on

the reasons for the disparate treatment.

      Once disparate treatment has been proven, the claimant must

show the reasons for the classification in the policy were not sufficiently

important or related to the government’s interest. RACI, 675 N.W.2d at

7.   First, we note the policy’s classification is based on whether the

disabling condition arises out of the employment, not on the gender of

the claimant—except in this as-applied challenge—making the proper

level of scrutiny rational basis. This analysis involves three questions.

First, the court must determine whether there was a valid, “realistically

conceivable” reason for the classification. Id. (quoting Miller v. Boone Cty.

Hosp., 394 N.W.2d 776, 779 (Iowa 1986)). Next, the court must evaluate

whether the “reason has a basis in fact.” Id. at 7–8. Finally, it must

determine if the relationship between the classification and the purpose

for it “is so weak that the classification must be viewed as arbitrary.” Id.

at 8. The burden is not on the government to justify its action, but for

the plaintiff to rebut a presumption of constitutionality.        King, 818

N.W.2d at 28; RACI, 675 N.W.2d at 8.

      The purpose, scope, and provisions of the City’s light-duty policy

all classify eligibility and the purpose of the policy as helping those

injured on the job.     Reasons why the policy exists include getting

employees back to work after an on-the-job injury, minimizing financial

hardship, retaining workers, minimizing workers’ compensation costs,
                                     26

and making the receipt of workers’ compensation benefits contingent on

performing those duties of their jobs consistent with medical restrictions.

Limiting light duty to those harmed through a work injury and thereby

minimizing workers’ compensation costs is a realistically conceivable

reason for the classification in the policy. As long as an employer must

pay an employee under workers’ compensation law, it is reasonable to

require the employee to work to the extent the employee is capable of it.

      Next, we consider whether the reason has a basis in fact. The City

has provided examples of several other firefighters denied light duty

when disabled from nonjob-related events, including cancer.           The City

has also provided an example of McQuistion being required to work light

duty when she suffered an on-the-job injury.           McQuistion has not

challenged either the workers’ compensation reason for the classification

in the policy, nor its basis in fact, but argues the reason is not good

enough to support the classification.

      Therefore, we must determine if the relationship between the

classification and the purpose for it is so weak as to be arbitrary. While

some of the policy’s articulated benefits, such as minimizing the

employee’s financial hardship and retaining workers, would apply to all

temporarily disabled employees no matter the source of the injury, other

benefits articulated like minimizing costs of worker’s compensation

programs    and    the   provision    changing    eligibility   for   workers’

compensation benefits upon refusal of light duty are clearly related only

to workers’ compensation situations. Providing benefits to those harmed

during the course of their employment and minimizing extra costs

associated with workers’ compensation are legitimate purposes for the

City. McQuistion has not demonstrated the classification of on- versus

off-the-job injury or disability to be so tenuously related to its purpose as
                                     27

to render the classification arbitrary. The classification of on- or off-the-

job injuries is rationally related to the legitimate purpose of minimizing

workers’ compensation benefits.      Therefore, we find the classification

does not violate the equal protection clause.

      V. Substantive Due Process Claim.

      We now turn to consider the second constitutional claim asserted

by McQuistion.       She asserts that the absence of a light-duty

accommodation by the City infringes on her fundamental right to

procreate in violation of the due process clause under article I, section 9

of the Iowa Constitution. It is very important to frame the claim properly

because the due process clause of our constitution exists to prevent

unwarranted governmental interferences with personal decisions in life.

Hensler, 790 N.W.2d at 583 (evaluating whether the governmental

interference was warranted); see also Harris v. McRae, 448 U.S. 297,

317–18, 100 S. Ct. 2671, 2688, 65 L. Ed. 2d 784, 805 (1980).

      We have adopted a two-step analysis when presented with a

substantive due process claim. The first step involves a determination of

the nature of the right at stake. State v. Seering, 701 N.W.2d 655, 662

(Iowa 2005).   The second step turns to an analysis of the appropriate

level of scrutiny. Id. at 662–63. Under this step, if a fundamental right

is involved, we apply a strict-scrutiny analysis. This analysis requires us

to determine “whether the government action infringing the fundamental

right is narrowly tailored to serve a compelling government interest.” Id.

at 662 (quoting State v. Hernandez-Lopez, 639 N.W.2d 226, 238 (Iowa

2002)).    If a fundamental right is not infringed, the statute or

governmental action “need only survive a rational basis analysis.”        Id.

This analysis requires us to determine whether there is “a reasonable fit

between the government interest and the means utilized to advance that
                                       28

interest.” Id. (quoting Hernandez-Lopez, 639 N.W.2d at 238). We begin

with the first step of the analysis.

      The claim articulated by McQuistion identifies the individual

liberty alleged to be at stake as the right to procreate.        McQuistion

asserts that women have a fundamental right to procreate and that this

right has been implicated by the absence of a light-duty accommodation

by the City for those women who work at a job that would require a light-

duty accommodation during pregnancy, such as firefighters. Her claim

is built on the assertion that the absence of a light-duty policy interferes

with the right to procreate by interfering with her ability to work.

      The United States Supreme Court has held that the “freedom of

personal choice in matters of marriage and family life is one of the

liberties protected by the Due Process Clause of the Fourteenth

Amendment.” Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632, 639–40,

94 S. Ct. 791, 796, 39 L. Ed. 2d 52, 60 (1974). We, too, have recognized

familial rights to be fundamental liberties under our Iowa Constitution.

In re Guardianship of Kennedy, 845 N.W.2d 707, 714 (Iowa 2014) (finding

a guardian sterilizing a ward without court involvement raises “serious

due process concerns”); Seering, 701 N.W.2d at 663.            The right to

procreate is implied in the concept of ordered liberty and qualifies for due

process protection as a fundamental right. See Kennedy, 845 N.W.2d at

714–15.

      Consequently, McQuistion has asserted a substantial due process

claim built on a fundamental right. Yet, she must additionally establish

that the fundamental right asserted—her right to procreate—has been

implicated by the particular governmental action at issue. See Seering,

701 N.W.2d at 663 (requiring accuracy and specificity in the claim to

allow the court to proceed on appropriate grounds).               Not every
                                    29

government action that relates in any way to a fundamental liberty must

be subjected to strict-scrutiny analysis. See Zablocki v. Redhail, 434 U.S.

374, 386–87, 98 S. Ct. 673, 681, 54 L. Ed. 2d 618, 631 (1978). Instead,

the alleged infringement is unconstitutional only when it “has a direct

and substantial impact” on the fundamental right. Seering, 701 N.W.2d

at 663.   Reasonable regulations that do not directly and substantially

interfere with the right may be imposed. See Zablocki, 434 U.S. at 386,

98 S. Ct. at 681, 54 L. Ed. 2d at 631.

      In Seering, we identified numerous cases in which the statute or

government action at issue did substantially and directly impact the

fundamental interest at stake. 701 N.W.2d at 663–64. We cited three

U.S. Supreme Court cases examining familial rights as fundamental

rights.   In Zablocki, the Court found a state statute that prohibited a

noncustodial parent ordered to pay child support from marrying without

a court order substantially interfered with the right to marry. 434 U.S.

at 388–90, 98 S. Ct. at 682–83, 54 L. Ed. 2d at 632. The Court in Moore

v. City of East Cleveland found a city ordinance that excluded a

grandchild from living in a single-family household substantially

interfered with the freedom of personal choices in matters of family life.

431 U.S. 494, 499–500, 97 S. Ct. 1932, 1935–36, 52 L. Ed. 2d 531, 537–

38 (1977).     Finally, in Loving v. Virginia, the Court found a state

miscegenation statute that prohibited interracial marriage substantially

interfered with the freedom to marry. 388 U.S. 1, 11–12, 87 S. Ct. 1817,

1823–24, 18 L. Ed. 2d 1010, 1017–18 (1967). We also cited one of our

own cases discussing the requirement of a direct and substantial impact.

Seering, 701 N.W.2d at 664. In Santi v. Santi, we found a grandparent

visitation statute impermissibly interfered with the fundamental liberty

interest in parental caretaking. 633 N.W.2d 312, 317–18 (Iowa 2001).
                                       30

The statute permitted court-ordered grandparent visitation over the

objection of the parents in an intact nuclear family.          Unlike statutes

requiring car seats or vaccinations for children that only minimally

intrude on a parent’s protected caretaking interest, we found that the

nature of the grandparent visitation statute was more invasive and had a

substantial impact on the liberty interest at stake. Id. at 318.

          Following   Seering,   we   again   confronted     and   applied   the

requirement of a substantive due process claim to consider whether the

governmental action infringed on a fundamental right in Hensler v. City

of Davenport, 790 N.W.2d 569 (Iowa 2010). There, we faced a challenge

to a city ordinance that imposed a duty on parents to control their

children and prevent them from committing unlawful acts. Id. at 575.

The ordinance included graduated sanctions against parents for

breaching this duty. Id. at 576. The first violation resulted in a warning

letter.     Id.   The second violation required the parents to complete a

parenting class. Id. The third or subsequent violation resulted in a civil

penalty between $100 and $750. Id. We held the ordinance did not have

a direct and substantial impact on the fundamental right to parent and

exercise care and control over a child.        Id. at 583.    The force of the

penalties under the ordinance did impact the right to parent, but not

enough to violate the constitutionally protected right. Id.

          McQuistion supports her claim that the City substantially

interfered with her right by relying on the holding in Rodgers v. Berger,

438 F. Supp. 713 (D. Mass. 1977). In that case, the court considered the

constitutionality of a mandatory pregnancy leave provision in a school

collective bargaining agreement.       Id. at 721.   The provision required a

pregnant teacher to be on leave for a year after the end of the pregnancy.

Id. at 715. In finding the policy violated substantive due process, the
                                         31

court relied on LaFleur, which found that “overly restrictive” maternity

leave regulations create a heavy burden on the exercise of the right to

procreate. Id. at 722 (quoting LaFleur, 414 U.S. at 640, 94 S. Ct. 796, 39

L. Ed. 2d at 60). 7

       Unlike the claim of governmental interference in each of these

cases, this case does not allow us to consider the extent of the

interference.    Instead, it requires us to consider a more fundamental

question of whether the interference alleged by McQuistion was created

by government action. We have expressed doubt in the past about the

viability of a substantive due process claim based on the failure of

government to act.        King, 818 N.W.2d at 31.            The substantive due

process protections under our constitution have traditionally been

applied when government has engaged in actual conduct that interferes

with a right. Id. Yet, we do not apply the affirmative and negative act

distinction as a legal principle to deny relief when based on the failure of

government to act, but recognize it as a general observation. We must,

in every case, look behind the distinction to see if the government

interference at issue—affirmative or negative—constitutes a direct and

substantial infringement of a fundamental right.

       McQuistion claims the City interfered with the exercise of her right

to have children when it acted to deny her request to alter her job duties

to enable her to work during her entire pregnancy. This claim identifies

a governmental act, but it fails to further identify how McQuistion’s

inability to work throughout pregnancy interfered with the exercise of her


       7As explained earlier, we decided this issue on statutory grounds under the Iowa
Civil Rights Act and have not needed to find a constitutional basis to overturn the
mandatory-leave provisions under the Iowa Constitution. See Parr, 227 N.W.2d at 496–
97.
                                     32

right.    McQuistion answered by pointing to the financial burdens and

resulting difficult decisions imposed on women and families by the loss

of income associated with the inability to work throughout pregnancy.

However, the City’s decision to deny McQuistion’s request for light duty

did not change any of the viable choices available to her, and she has

failed to identify any specific effect of the City’s action on her decision to

procreate. Thus, the financial obstacle she offered to support her claim

of infringement on her right to procreate was not created by the City’s

decision to deny relief.     McQuistion has not identified any facts to

establish any other form of governmental interference and, so, has failed

to frame a claim of infringement on a fundamental right.

         Without the infringement of a fundamental right, we turn to our

rational-basis analysis.      When applying the rational-basis test to

evaluate the policy under the due process clause of the Iowa

Constitution, the claim fails. The rational-basis analysis under the equal

protection clause would be equally applicable to the due process claim,

with the same result—that the policy is not unconstitutional. See RACI,

675 N.W.2d at 7.

         The outcome we reach in this case does not in any way overlook or

minimize the existence of an obstacle in society faced by many women in

the workplace in the exercise of their right to procreate. Due to the range

of financial circumstances of all people, the financial burdens resulting

from the inability to continue in employment during pregnancy could

substantially interfere with the exercise of a fundamental right.         The

obstacle is pervasive and affects both women and men in the exercise of

their right to have children when an inability to work throughout

pregnancy because of the pregnancy adversely impacts the overall family

finances.
                                      33

      Yet, this case reveals that our constitution only declares a certain

level of protection for people and that the constitutional powers of courts

are limited.       One of the limitations revealed is the preliminary

requirement for a due process claim that government action create the

interference.   Government action allows for the elective branches of

government to debate and balance the competing interests and policies

behind the government action and for laws and policies to be made or

rejected based on that process.      The arm of the court, however, only

protects the constitutional floor of the rights of people and ensures

government provides nothing less.          It is up to the other branches of

government to provide more.         Over the years, the Iowa Civil Rights

Commission and the Iowa General Assembly have engaged in this

process. The resulting laws passed over the years have differed in some

respects from the earlier regulations from the agency and reflect the

changing ideas and attitudes of society toward pregnant workers. These

laws and rules can continue to evolve as time continues to pass to reflect

the will of the people.   The role of courts in the process is limited to

interpreting those laws when challenged as ambiguous and make certain

those laws and other forms of government action, when challenged as

unconstitutional,    conform   to   the    supreme   law   identified   in   the

constitution. That is the role engaged in by the court today. It is not our

role to do more.

      VI. Conclusion.

      We reverse the district court decision granting the City summary

judgment on the pregnancy discrimination claim.            We remand to the

district court for further consideration in light of our opinion today. We

affirm the district court and dismiss the equal protection and due
                                 34

process claims.   We tax the costs of this action equally between the

parties.

      AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
