Erin Dindinger, Lisa Loring, and Elizabeth Freund v. Allsteel, Inc. and Scott Mills

IN THE SUPREME COURT OF IOWA
No. 13–1411
Filed March 6, 2015
ERIN DINDINGER, LISA LORING, and ELIZABETH FREUND,
Plaintiffs,
vs.
ALLSTEEL, INC. and SCOTT MILLS,
Defendants.
Certified questions of law from the United States District Court for
the Southern District of Iowa, Stephanie M. Rose, United States District
Court Judge.
A federal district court certified two questions in a suit for wage
discrimination under the Iowa Civil Rights Act. CERTIFIED
QUESTIONS ANSWERED.
Ann E. Brown-Graff and Brad J. Brady of Brady Preston Brown
PC, Cedar Rapids, for plaintiffs.
Frank Harty, Debra Hulett, and Frances M. Haas of Nyemaster
Goode, P.C., Des Moines, for defendants.
Jill Zwagerman of Newkirk Law Firm, P.L.C., Des Moines, and
Melissa C. Hasso of Sherinian & Hasso Law Firm, West Des Moines, for
amicus curiae Iowa Affiliate of the National Employment Lawyers
Association.
2
MANSFIELD, Justice.
We have been asked to answer two certified questions of Iowa law
in an employment discrimination case filed in federal district court. They
are:
1. Do Iowa Code section 216.6A, Iowa’s equal pay law,
and the accompanying remedial language in section
216.15(9)(a)(9), apply to permit a plaintiff to pursue wage
discrimination claims under section 216.6A that accrued
before April 28, 2009, the date Iowa’s General Assembly
made these statutes effective, in the absence of express
legislative language making these laws retroactive?
2. If a prevailing plaintiff may only recover damages
under Iowa Code section 216.6A and the accompanying
remedial language in section 216.15(9)(a)(9) prospectively,
may the same plaintiff also recover damages for prevailing on
a wage discrimination claim under section 216.6, and if so,
what types of damages may that plaintiff recover and for
what period of time?
For the reasons discussed herein, we answer the questions as
follows:
1. No.
2. Yes. Recoverable damages for loss of income are
based on discriminatory wage payments that occurred within
300 days before the plaintiff filed a complaint with the civil
rights commission.
I. Background Facts and Proceedings.
Plaintiff Erin Dindinger worked for the defendant company,
Allsteel, Inc., from December 1999 through May 20, 2011. Plaintiff Lisa
Loring has worked at Allsteel since 2005. Defendant Scott Mills was the
vice president of operations at Allsteel and the supervisor of Dindinger’s
direct supervisor during this period. The plaintiffs allege that during
their time with the company, Allsteel paid them less than male
employees performing similar work.
3
Dindinger, Loring, and a third plaintiff (Elizabeth Freund) brought
suit against Allsteel in the United States District Court for the Southern
District of Iowa on October 10, 2011, alleging Allsteel had violated the
Federal Equal Pay Act of 1963. See 29 U.S.C. § 206(d) (2006). On
February 28, 2012, plaintiffs amended their complaint to include claims
by Dindinger and Loring that Allsteel had violated Iowa Code section
216.6A, which was enacted in 2009 and expressly prohibits wage
discrimination. See 2009 Iowa Acts ch. 96, § 2 (codified at Iowa Code
§ 216.6A (2011)). The amended complaint also included claims by
Dindinger and Loring that Allsteel had violated Federal Title VII and
violated the ICRA as it stood before 2009. The amended complaint
further recited that Dindinger and Loring had filed employment
discrimination complaints with the Iowa Civil Rights Commission (ICRC)
on October 12, 2011, as required by Iowa Code section 216.16. See Iowa
Code § 216.16(1). According to the complaint, the ICRC issued right-to-
sue notices to Dindinger and Loring on December 29. See id.
§ 216.16(2)(b), (3)(a).
On January 4, 2013, the defendants moved for partial summary
judgment. Among other things, the defendants urged the court to
dismiss Loring and Dindinger’s claims under Iowa Code section 216.6A
to the extent they arose before the effective date of that provision (July 1,
2009). Dindinger and Loring countered that section 216.6A should apply
retroactively and should permit them to recover lost wages for the entire
period they were discriminatorily paid.
The court heard oral arguments on March 26, 2013. The district
court’s subsequent September 3 certification order provides the
background to the present appeal:
4
At oral argument, the Court asked both sides whether
certifying questions of Iowa law to the Iowa Supreme Court
would be helpful. Both sides responded that their respective
positions were clearly correct and that certification was not
necessary. Defendants reevaluated their position, and filed a
Motion to Certify arguing that certification would aid in
untangling the issue of whether Section 216.6A and its
complementary subsection, Iowa Code § 216.15(9)(a)(9),
apply retroactively to plaintiffs’ claims. Plaintiffs filed a
resistance, defendants filed a reply, and the Court issued its
Ruling Granting Defendants’ Motion to Certify. The Court
also, on its own motion, notified the parties that it may
certify the additional and alternative question of the
availability and length of time for Section 216.6 wage
discrimination damages . . . .
(Footnote omitted.) (Citation omitted.)
After permitting the parties to submit briefs and proposed
language on the certification issues, the district court decided to certify
two questions to this court to clarify Iowa law with respect to wage
discrimination claims.
II. Standard of Review.
As we have said recently,
It is within our discretion to answer certified questions
from a United States district court. Iowa Code § 684A.1
(stating the court “may” answer a certified question). We
may answer a question certified to us when (1) a proper
court certified the question, (2) the question involves a
matter of Iowa law, (3) the question “may be determinative of
the cause . . . pending in the certifying court,” and (4) it
appears to the certifying court that there is no controlling
Iowa precedent. Id.
Life Investors Ins. Co. of Am. v. Estate of Corrado, 838 N.W.2d 640, 643
(Iowa 2013).
III. Analysis.
A. First Certified Question: Is Iowa Code Section 216.6A
Prospective or Retroactive? In 2009, the general assembly adopted an
act “providing that wage discrimination is an unfair employment practice
under the Iowa civil rights Act and providing an enhanced remedy.”
5
2009 Iowa Acts ch. 96, preamble. Among other things, the amendment
added a new section to the ICRA, section 216.6A. See id. § 2.
Previously, the ICRA made it an unfair or discriminatory practice
for an employer “to refuse to hire, accept, register, classify, or refer for
employment, to discharge any employee, or to otherwise discriminate in
employment . . . because of the age, race, creed, color, sex, sexual
orientation, gender identity, national origin, religion, or disability” of the
employee or job applicant. Iowa Code § 216.6(1)(a). The new section,
section 216.6A, provides as follows:
216.6A Additional unfair or discriminatory practice
— wage discrimination in employment.
1. a. The general assembly finds that the practice of
discriminating against any employee because of the age,
race, creed, color, sex, sexual orientation, gender identity,
national origin, religion, or disability of such employee by
paying wages to such employee at a rate less than the rate
paid to other employees does all of the following:
(1) Unjustly discriminates against the person receiving
the lesser rate.
(2) Leads to low employee morale, high turnover, and
frequent labor unrest.
(3) Discourages employees paid at lesser wage rates
from training for higher level jobs.
(4) Curtails employment opportunities, decreases
employees’ mobility, and increases labor costs.
(5) Impairs purchasing power and threatens the
maintenance of an adequate standard of living by such
employees and their families.
(6) Prevents optimum utilization of the state’s available
labor resources.
(7) Threatens the well-being of citizens of this state
and adversely affects the general welfare.
b. The general assembly declares that it is the policy
of this state to correct and, as rapidly as possible, to
eliminate, discriminatory wage practices based on age, race,
6
creed, color, sex, sexual orientation, gender identity, national
origin, religion, and disability.
2. a. It shall be an unfair or discriminatory practice
for any employer or agent of any employer to discriminate
against any employee because of the age, race, creed, color,
sex, sexual orientation, gender identity, national origin,
religion, or disability of such employee by paying wages to
such employee at a rate less than the rate paid to other
employees who are employed within the same establishment
for equal work on jobs, the performance of which requires
equal skill, effort, and responsibility, and which are
performed under similar working conditions. An employer or
agent of an employer who is paying wages to an employee at
a rate less than the rate paid to other employees in violation
of this section shall not remedy the violation by reducing the
wage rate of any employee.
b. For purposes of this subsection, an unfair or
discriminatory practice occurs when a discriminatory pay
decision or other practice is adopted, when an individual
becomes subject to a discriminatory pay decision or other
practice, or when an individual is affected by application of a
discriminatory pay decision or other practice, including each
time wages, benefits, or other compensation is paid,
resulting in whole or in part from such a decision or other
practice.
Iowa Code § 216.6A(1)–(2). The section goes on to delineate certain
affirmative defenses for the employer:
3. It shall be an affirmative defense to a claim arising
under this section if any of the following applies:
a. Payment of wages is made pursuant to a seniority
system.
b. Payment of wages is made pursuant to a merit
system.
c. Payment of wages is made pursuant to a system
which measures earnings by quantity or quality of
production.
d. Pay differential is based on any other factor other
than the age, race, creed, color, sex, sexual orientation,
gender identity, national origin, religion, or disability of such
employee.
Id. § 216.6A(3).
 7
The legislature simultaneously enacted a separate, enhanced
remedy for violations of section 216.6A. 2009 Iowa Acts ch. 96, § 3
(codified at Iowa Code § 216.15(9)(a)(9)). Specifically:
(9) For an unfair or discriminatory practice relating to
wage discrimination pursuant to section 216.6A, payment to
the complainant of damages for an injury caused by the
discriminatory or unfair practice which damages shall
include but are not limited to court costs, reasonable
attorney fees, and either of the following:
(a) An amount equal to two times the wage differential
paid to another employee compared to the complainant for
the period of time for which the complainant has been
discriminated against.
(b) In instances of willful violation, an amount equal to
three times the wage differential paid to another employee as
compared to the complainant for the period of time for which
the complainant has been discriminated against.
Iowa Code § 216.15(9)(a)(9). In contrast, plaintiffs prevailing on any
other ICRA claim are entitled to recover court costs, reasonable attorney
fees, and “actual damages.” Id. § 216.15(9)(a)(8).
The first certified question requires us to determine whether
section 216.6A and the enhanced remedy in section 216.15(9)(a)(9)
should apply retroactively to claims arising before the statute’s July 1,
2009 effective date. 1 “Legislative intent determines if a court will apply a
1The certified question assumes these ICRA amendments became effective April
28, 2009, i.e., the date the governor approved them. See 2009 Iowa Acts ch. 96
(“Approved April 28, 2009.”). However, legislation passed at a regular session does not
go into effect until July 1 of the session year unless the legislature expressly provides
for a different date, and it did not do so here. See Iowa Const. art. III, § 26 (“An act of
the general assembly passed at a regular session of a general assembly shall take effect
on July 1 following its passage unless a different effective date is stated in an act of the
general assembly.”).
Another federal district court in Iowa has ruled that Iowa Code section 216.6A
applies prospectively only. See Forster v. Deere & Co., 925 F. Supp. 2d 1056, 1065–66
(N.D. Iowa 2013); Lenius v. Deere & Co., 924 F. Supp. 2d 1005, 1014–15 (N.D. Iowa
2013). The court there concluded that “the statute created, defined, and regulated a
8
statute retrospectively or prospectively.” Iowa Beta Chapter of Phi Delta
Theta Fraternity v. State, 763 N.W.2d 250, 266 (Iowa 2009). There is a
general presumption that newly enacted statutes apply only
prospectively. See Iowa Code § 4.5 (“A statute is presumed to be
prospective in its operation unless expressly made retrospective.”);
Frideres v. Schiltz, 540 N.W.2d 261, 264 (Iowa 1995) (discussing the
legislative preference for prospectivity). We have summarized the
relevant principles in the past:
It is well established that a statute is presumed to be
prospective only unless expressly made retrospective.
Statutes which specifically affect substantive rights are
construed to operate prospectively unless legislative intent to
the contrary clearly appears from the express language or by
necessary and unavoidable implication. Conversely, if the
statute relates solely to a remedy or procedure, it is
ordinarily applied both prospectively and retrospectively.
. . . Substantive law creates, defines and regulates
rights. Procedural law, on the other hand, is the practice,
method, procedure, or legal machinery by which the
substantive law is enforced or made effective. Finally, a
remedial statute is one that intends to afford a private
remedy to a person injured by a wrongful act. It is generally
designed to correct an existing law or redress an existing
grievance.
Anderson Fin. Servs., LLC v. Miller, 769 N.W.2d 575, 578 (Iowa 2009)
(internal quotation marks omitted).
The first step in determining whether a statute has retroactive
effect is to assess whether the legislature expressly stated its intent that
a statute should apply retrospectively. Id. Here, the legislature did not
include express language in section 216.6A to make it retroactive.
___________________________________
new right.” Forster, 925 F. Supp. 2d at 1066; Lenius, 924 F. Supp. 2d at 1015. That
ruling, of course, is not binding on us.
9
The next step is to ascertain whether “the statute affects
substantive rights or relates merely to a remedy.” Id. at 579. If the law
“is substantive, we presume it operates prospectively only.” Id. If the
statute is remedial, we presume it operates retrospectively. Id. A statute
is not remedial merely because one might say, colloquially, that its
purpose is to “remedy” a defect in the law. See id. at 580. “[I]f a mere
legislative purpose to remedy a perceived defect in the law made a statute
remedial, very few statutes would not fall within this classification.” Id.
at 580 n.4. Thus, in Anderson Financial, our most recent foray into this
subject, we held that a cap on certain finance charges was not “remedial”
but “substantive,” because it effected a substantive change in
permissible conduct. Id. at 580–81.
When a statute creates new rights or obligations, it is substantive
rather than procedural or remedial. See id. at 578, 580–81; see also
Davis v. Jones, 247 Iowa 1031, 1033, 1035–36, 78 N.W.2d 6, 7–9 (1956)
(holding a new statute enabling jurisdiction over certain nonresidents
could not be considered remedial or procedural because “a new right was
created by the amendment”). In Hiskey v. Maloney, we declined to
retroactively apply a statute that established a new tax liability because
retroactive application “does not extend to statutes creating new rights or
imposing new obligations.” 580 N.W.2d 797, 799 (Iowa 1998). Despite
the fact the legislature characterized the statute in Hiskey as remedial,
such “labeling . . . [does not] override the statutory presumption of
prospective application . . . when the statute in question creates a new
personal liability.” Id. On the other hand, “we do allow a statute to
apply retrospectively when the statute provides an additional remedy to
an already existing remedy or provides a remedy for an already existing
loss.” Iowa Beta Chapter, 763 N.W.2d at 267.
10
Dindinger and Loring maintain that section 216.6A is not
substantive. They argue the section is merely procedural because it
shifts the burden of proof from the employee to the employer. They
further contend section 216.6A is merely remedial because it provides an
enhanced remedy—double or treble damages—for a preexisting cause of
action of wage discrimination.
After careful consideration, we disagree with Dindinger and Loring.
Under preexisting law, unlawful discrimination occurred only when a
person was subjected to adverse treatment “because of” her membership
in a protected class. See Iowa Code § 216.6(1)(a). It is true that the
McDonnell Douglas framework could assist the plaintiff in proving
discriminatory intent by allowing an inference of intent and shifting the
burden of production to the employer when the plaintiff makes a certain
showing. See, e.g., Jones v. Univ. of Iowa, 836 N.W.2d 127, 147–48 (Iowa
2013) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct.
1817, 36 L. Ed. 2d 668 (1973)). Yet if each side met its burden of
production and made its required showing, the plaintiff still had the
ultimate burden of proving unlawful discrimination was “the real
reason.” Smidt v. Porter, 695 N.W.2d 9, 14–15 (Iowa 2005); see also
Farmland Foods, Inc. v. Dubuque Human Rights Comm’n, 672 N.W.2d
733, 741 n.1 (Iowa 2003) (“It is not necessary to follow the McDonnell
Douglas analysis once a case has been fully tried because the burden
ultimately rests with the plaintiff to establish the claim and show the
adverse employment action resulted from discrimination.”); Bd. of
Supervisors of Buchanan Cnty. v. Iowa Civil Rights Comm’n, 584 N.W.2d
252, 255 (Iowa 1998) (stating that the pre-2009 “employment
11
discrimination provisions of chapter 216 . . . require a showing of intent
to discriminate”). 2
In contrast, under section 216.6A of the Iowa Code, an employer
that pays lower wages for equal work to a person in a protected class
violates the law without regard to the employer’s intent. Note the distinct
wording of section 216.6A. It makes it illegal “to discriminate against
any employee . . . by paying wages to such employee at a rate less than
the rate paid to other employees.” Iowa Code § 216.6A(2)(a). Thus,
rather than requiring discrimination based on protected status to be
independently proved, section 216.6A defines discrimination as the act of
paying lower wages. As the amicus curiae supporting the plaintiffs puts
it,
[T]he Iowa Legislature enacted § 216.6A to ensure that all
forms of discrimination would be exposed and addressed—
even those that were falling through the cracks under
traditional discrimination analysis.
....
Section 216.6A addresses this issue by including
additional remedies and making the claim intent-neutral.
Under § 216.6A, it does not matter why the wages are
discriminatorily less; it matters only that they are less.
Section 216.6A of the Iowa Code therefore creates an entirely new
cause of action: strict liability on the part of employers for paying
unequal wages. Its wording is similar to the Federal Equal Pay Act.
Compare id., with 29 U.S.C. § 206(d)(1) (2012) (providing that no
employer subject to the Act “shall discriminate . . . between employees on
2Of course, prior law also recognized “disparate impact” claims. See Hy-Vee
Food Stores, Inc. v. Iowa Civil Rights Comm’n, 453 N.W.2d 512, 517–18 (Iowa 1990).
But for such a claim, the plaintiff generally must show that “a particular employment
practice has an adverse impact on a protected group.” Id. at 517. Thus, to establish
liability, the plaintiff still had to prove more than a difference in wages.
12
the basis of sex by paying wages to employees . . . at a rate less than the
rate at which he pays wages to employees of the opposite sex”). We
previously recognized that “[u]nlike Title VII and the employment
discrimination provisions of chapter 216, which require a showing of
intent to discriminate based on gender, the Equal Pay Act requires no
showing of discriminatory intent.” Bd. of Supervisors of Buchanan Cnty.,
584 N.W.2d at 255; see also Bauer v. Curators of Univ. of Mo., 680 F.3d
1043, 1045 (8th Cir. 2012) (contrasting the Equal Pay Act and Title VII,
and noting that the former, “a strict liability statute, does not require
plaintiffs to prove that an employer acted with discriminatory intent;
plaintiffs need show only that an employer pays males more than
females”).
The plaintiffs argue that, as a practical matter, section 216.6A of
the Iowa Code only shifts the burden of proof from the plaintiff to the
defendant because one of the statutory affirmative defenses allows the
employer to prove the wage differential was due to a factor other than the
employee’s protected status. See Iowa Code § 216.6A(3)(d). But this
does not alter the fact that the legislation establishes a new cause of
action with fewer elements than before. And it is not open to dispute
that there are some cases where the employee will be able to prevail now
and would not have been able to prevail before. In that middle group,
section 216.6A imposes liability that did not previously exist.
In some ways, section 216.6A presents a clearer case for
prospective-only operation than a law that made it easier to obtain
personal jurisdiction by personal service, see Davis, 247 Iowa at 1033–
36, 78 N.W.2d at 7–9, or a law that imposed personal in addition to in
rem liability for nonpayment of property taxes, see Hiskey, 580 N.W.2d
at 798–99. Neither of those statutes altered the scope of what was and
13
was not permissible conduct under Iowa law. See id. at 798–99; Davis,
247 Iowa at 1033–36, 78 N.W.2d at 7–9. Yet we considered both to be
substantive rather than remedial or procedural changes. See Hiskey,
580 N.W.2d at 799; Davis, 247 Iowa at 1036, 78 N.W.2d at 8–9; cf. State
ex rel. Turner v. Limbrecht, 246 N.W.2d 330, 333 (Iowa 1976) (finding that
the consumer fraud act had retroactive effect because “the attorney
general was still required to allege and prove reliance and damages,” and
“[a]ccordingly we find no difference between the actionable fraud alleged
by the attorney general and the common law action for fraud available to
injured parties on an individual basis prior to the advent of [the act]”),
overruled on other grounds by State ex rel. Miller v. Hydro Mag, Ltd., 436
N.W.2d 617, 622 (Iowa 1989). 3
3Dindinger and Loring cite three cases where this court gave retroactive effect to
legislation. See City of Waterloo v. Bainbridge, 749 N.W.2d 245, 250–51 (Iowa 2008);
Iowa Comprehensive Petroleum Underground Storage Tank Fund Bd. v. Shell Oil Co., 606
N.W.2d 370, 375–76 (Iowa 2000); Emmet Cnty. State Bank v. Reutter, 439 N.W.2d 651,
653–54 (Iowa 1989). We find them distinguishable. The statute involved in Bainbridge
was “not a substantive statute.” 749 N.W.2d at 250–51. It simply had the effect of
shortening the time for a tax sale buyer to exercise its option to give notice of the right
of redemption. Id. The statute in Tank Fund, according to the legislative findings,
established a clean-up fund for “past and existing petroleum leaks.” 606 N.W.2d at 375
(emphasis omitted) (internal quotation marks omitted). This “clearly revealed an intent
for the act to apply retroactively.” Id. at 376. The statute in Emmet County required
state banks that purchased land at a foreclosure sale to offer it to the prior owner on
the same terms before consummating any resale. 439 N.W.2d at 653. We noted that
the law referred to resales of “agricultural land held pursuant to this subsection” and
thus “appl[ied] to agricultural land owned by a state bank on the effective date of the
amendment, regardless of when the land was acquired.” Id. at 654 (emphasis omitted)
(internal quotation marks omitted).
In a sense, the laws in Bainbridge and Emmet County were not retroactive at all
because they only set standards for conduct occurring after their enactment—i.e., a city
could seek title to abandoned land, Bainbridge, 749 N.W.2d at 250–51, and a state
bank had to offer foreclosed property on the same terms to the prior owner before
selling it to a new owner, Emmet Cnty., 439 N.W.2d at 653. Here, by contrast,
Dindinger and Loring seek to have the substantive law set forth in Iowa Code section
216.6A applied to conduct that predated the enactment of the statute, i.e., things their
employer did or did not do before the law was adopted in 2009. In the Tank Fund case,
the legislature overcame the presumption of prospective-only operation by expressly
14
As the title of section 216.6A indicates, its purpose is to recognize
an “[a]dditional unfair or discriminatory practice – wage discrimination in
employment.” Iowa Code § 216.6A (emphasis added); cf. In re Estate of
Sampson, 838 N.W.2d 663, 667 (Iowa 2013) (relying on section titles as
an aid to interpretation); State v. Tague, 676 N.W.2d 197, 201–03 (Iowa
2004) (same). Liability for this additional practice creates a new
obligation for employers. Apparently, therefore, the general assembly
believed it was making a substantive change in the law, which again, is
the trigger for a presumption of forward-only effect. See State v. Jones,
298 N.W.2d 296, 298 (Iowa 1980) (“The legislature is presumed to know
the state of the law, including case law, at the time it enacts a statute.”);
see also Iowa Beta Chapter, 763 N.W.2d at 266 (“Legislative intent
determines if a court will apply a statute retrospectively or
prospectively.”). 4
In sum, after taking into account (1) Iowa Code section 4.5, (2) our
precedent that substantive changes in the law are presumed to apply
prospectively only, (3) the fact that section 216.6A creates a new strict
liability cause of action for wage discrimination, and (4) the general
___________________________________
stating that the law applied to “past and existing” leaks. 606 N.W.2d at 375–76
(emphasis omitted).
4The plaintiffs also argue that we should follow federal precedent that has
applied the Lilly Ledbetter Fair Pay Act of 2009 (FPA), Pub. L. No. 111–2, 123 Stat. 5
(codified as amended in scattered sections of 29 U.S.C. and 42 U.S.C. (2012)),
amending federal civil rights law, retroactively to conduct that occurred before its 2009
enactment. See, e.g., Kramer v. Bd. of Educ. of Balt. Cnty., 788 F. Supp. 2d 421, 426–
28 (D. Md. 2011); Russell v. Cnty. of Nassau, 696 F. Supp. 2d 213, 227 (E.D.N.Y. 2010);
Schengrund v. Pa. State Univ., 705 F. Supp. 2d 425, 432–33 (M.D. Pa. 2009). However,
two distinctions should be noted. The FPA did not amend the underlying substantive
law; it merely changed the statute of limitations. See Lilly Ledbetter Fair Pay Act § 3
(codified at 42 U.S.C. § 2000e–5(e)). Further, the FPA is expressly retroactive; Congress
provided that it would take effect “as if enacted on May 28, 2007” and that it “appl[ied]
to all claims of discrimination in compensation . . . that are pending on or after that
date.” Id. § 6 (codified at 42 U.S.C. § 2000e–5).
15
assembly’s own statement that it was legislating an “[a]dditional unfair or
discriminatory practice,” Iowa Code § 216.6A, we conclude that section
216.6A applies on a prospective basis only to conduct occurring after its
effective date of July 1, 2009.
B. Second Certified Question: To What Extent May a Plaintiff
Recover Damages for Wage Discrimination Under Iowa Code Section
216.6? Because we have concluded that Iowa Code section 216.6A
operates prospectively and not retroactively, we now turn to the district
court’s second certified question. This concerns the ability of plaintiffs to
recover damages for wage discrimination under the preexisting law,
namely, section 216.6. 5
Section 216.6 states in relevant part,
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 age, race,
creed, color, sex, sexual orientation, gender identity, national
origin, religion, or disability of such applicant or
employee . . . .
Iowa Code § 216.6(1)(a). Prevailing plaintiffs can recover “actual
damages, court costs and reasonable attorney fees.” Iowa Code
§ 216.15(9)(a)(8).
5The defendants urge that the plaintiffs have not pled and thus have not
preserved a wage discrimination claim under Iowa Code section 216.6 in federal court.
However, resolving that question of federal court claim preservation is not our
responsibility.
As noted above, we do have discretion not to answer a certified question. See
Iowa Right to Life Comm., Inc. v. Tooker, 808 N.W.2d 417, 427 (Iowa 2011). Here, we do
not have “a situation where the answers to the questions are fact-dependent or the facts
are in conflict.” Id. Accordingly, we will answer the second question and leave any
question of claim preservation to the federal district court to resolve.
16
Claims under section 216.6 are also subject to a limitations period:
“[A] claim under this chapter shall not be maintained unless a complaint
is filed with the [Iowa Civil Rights C]ommission within three hundred
days after the alleged discriminatory or unfair practice occurred.” Iowa
Code § 216.15(13). This provision mirrors similar language in federal
law. Compare id., with 42 U.S.C. § 2000e–5(e)(1) (requiring a charge to
be filed “within one hundred and eighty days after the alleged unlawful
employment practice occurred” or “within three hundred days after the
alleged unlawful employment practice occurred,” depending on the
situation).
We have no difficulty concluding that wage discrimination is
potentially actionable under Iowa Code section 216.6. The section
prohibits an employer from “otherwise discriminat[ing] in employment.”
Iowa Code § 216.6(1)(a). This catchall provision demonstrates the
legislature’s intent to prohibit all discriminatory practices relating to
employment under section 216.6, even those not specifically
enumerated. Payment of wages is a mainstay of any employment
relationship, and section 216.6 therefore encompasses discriminatory
pay practices.
For example, in a 1996 case before our court, a female plaintiff
brought a claim for loss of income, emotional distress, punitive damages,
and attorney fees based on the allegation her employer paid her less than
it paid men. Dutcher v. Randall Foods, 546 N.W.2d 889, 891 (Iowa
1996). The employer did not cross-appeal, so “we accept[ed] as
established that Randall violated the . . . Iowa Civil Rights Act by paying
Dutcher less than males in comparable positions.” Id. at 892; see also
Bd. of Supervisors of Buchanan Cnty., 584 N.W.2d at 258 (acknowledging
17
that pay disparities could be evidence of gender-based discrimination for
purposes of proving a claim under the ICRA).
We now turn to the real question in controversy—namely, the time
period for which damages are recoverable. Dindinger and Loring argue
that they should be able to recover for the entire period they were subject
to discrimination in pay, so long as at least one paycheck fell within the
300 days prior to their filing a complaint with the commission. Allsteel
and Mills urge us to conclude that the employer’s initial pay-setting
decisions were the relevant discriminatory practices, and because
Dindinger and Loring filed complaints with the commission more than
300 days thereafter, their claims are time-barred. For reasons explained
below, we adopt neither position, and instead conclude each paycheck is
a discriminatory practice and a new 300-day limitations period applies to
each check. This is essentially the view of the dissenters in Ledbetter v.
Goodyear Tire & Rubber Co., 550 U.S. 618, 643–45, 127 S. Ct. 2162,
2178–79, 167 L. Ed. 2d 982, 1001–03 (2007) (Ginsburg, J., dissenting),
superseded by statute, Lilly Ledbetter Fair Pay Act of 2009, Pub. L. No.
111-2, 123 Stat. 5 (codified as amended in scattered sections of 29
U.S.C. and 42 U.S.C.), and we believe it is both logical and consistent
with Iowa precedent.
We begin by reviewing our relevant caselaw and its interplay with
intervening decisions of the United States Supreme Court. Our narrative
begins in 1990, when we addressed an ICRA claim brought by a woman
of Vietnamese heritage who, for years, had been passed over for
additional hours or for promotion. See Hy-Vee Food Stores, Inc. v. Iowa
Civil Rights Comm’n, 453 N.W.2d 512, 528–29 (Iowa 1990). While the
plaintiff established a prima facie case of employment discrimination
based on national origin, the record also showed that the employer
18
sexually segregated its work force, reserving stocker positions (that were
needed for promotion) to men. Id. at 521–24.
We rejected the employer’s argument that the employee’s
complaint was untimely because the discriminatory conduct began
outside the limitations period in Iowa Code section 601A.15 (1983), even
though it continued into that period. Id. at 527–30. We elaborated on
the elements of a continuing violation by analogizing to federal cases
decided under the ICRA’s federal counterpart, Title VII. See id. at 528–
29. We stated,
[T]he “continuing violation” doctrine does not excuse
compliance with the time limits for filing a charge. But if a
violation is continuing, the time does not begin to run when
the discrimination first happens. Instead the action is
considered filed in time if there are discriminatory acts
within the limitations period.
Id. at 527.
Relying primarily on decisions of federal courts of appeals, we went
on to describe two types of continuing violations, “a series of acts with
one independent discriminatory act occurring within the charge-filing
period” and the “maintenance of a system or policy which discriminates.”
Id. at 528 (internal quotation marks omitted). We explained that the first
“series of acts” type of continuing violation is discerned by a multifactor
approach that considers whether the conduct is recurring and frequent,
yet seemingly nonpermanent. See id. at 528–29. We upheld the ICRC’s
findings that the employer’s national origin discrimination was a
continuing violation under the first theory, and its sex discrimination
was a continuing violation under the second theory. Id. at 528–30.
Without further discussing the continuing violation doctrine, we
then upheld the ICRC’s decision to award back pay to the employee for
19
the entire time period when the employer failed to promote her or give her
full-time status. Id. at 530–32.
Twelve years after our decision in Hy-Vee Food Stores, the United
States Supreme Court issued a decision that clarified when the
continuing violation doctrine applies in federal employment
discrimination cases. Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S.
101, 111, 122 S. Ct. 2061, 2071, 153 L. Ed. 2d 106, 120–21 (2002).
That case involved an African-American employee of Amtrak who alleged
he had been subjected to repeated acts of racial discrimination. Id. at
105, 122 S. Ct. at 2068, 153 L. Ed. 2d at 117.
The Court there rejected the idea that a series of related but
separate acts constituted a continuing violation. Id. at 111, 122 S. Ct. at
2071, 153 L. Ed. 2d at 120–21 (“There is simply no indication that the
term ‘[employment] practice’ converts related discrete acts into a single
unlawful practice for the purposes of timely filing.”) The Court explained,
“[D]iscrete discriminatory acts are not actionable if time barred, even
when they are related to acts alleged in timely filed charges. Each
discrete discriminatory act starts a new clock for filing charges alleging
that act.” Id. at 113, 122 S. Ct. at 2072, 153 L. Ed. 2d at 122.
Significantly, the Court quoted with approval a prior decision holding
that “ ‘[e]ach week’s paycheck that deliver[ed] less to a black than to a
similarly situated white is a wrong actionable under Title VII . . . .’ ” Id.
at 112, 122 S. Ct. at 2071, 153 L. Ed. 2d at 121 (quoting Bazemore v.
Friday, 478 U.S. 385, 395, 106 S. Ct. 3000, 3006, 92 L. Ed. 2d 315, 328
(1986) (per curiam)). 6 In short, the Supreme Court clarified that an
6Notably, after Morgan, lower federal courts stopped applying the continuing
violation theory to wage discrimination cases. See 2 Emp’t Discrimination Coordinator:
Analysis of Fed. Law § 73:22 (2014), available at www.westlaw.com (“Although prior to
20
independently actionable act of discrimination cannot be combined with
other independently actionable acts (even of the same type) to create a
continuing violation.
While the Morgan Court unanimously found that the continuing
violation rule did not apply to discrete acts of discrimination, a majority
of the Court would allow it to apply to hostile work environment claims,
noting that such claims were “different in kind from discrete acts.” Id. at
113–15, 122 S. Ct. at 2072–73, 153 L. Ed. 2d at 122–23. The Court
explained that a hostile work environment claim “cannot be said to occur
on any particular day,” but “occurs over a series of days or perhaps
years” and is “based on the cumulative effect of individual acts.” Id. at
115, 122 S. Ct. at 2073, 153 L. Ed. 2d at 123. A single act of
harassment may not rise to the level of an actionable hostile work
environment claim. See id.
Before our court had the chance to address the continuing
violation theory again in light of Morgan, the United States Court of
Appeals for the Eighth Circuit decided Madison v. IBP, Inc., 330 F.3d
1051 (8th Cir. 2003) (decision on remand). In Madison, the plaintiff had
obtained a pre-Morgan recovery in federal court under both Title VII and
the ICRA that was originally affirmed by the Eighth Circuit. See Madison
v. IBP, Inc., 257 F.3d 780, 784 (8th Cir. 2001). The Supreme Court
subsequently vacated for reconsideration in light of Morgan. Madison v.
IBP, Inc., 536 U.S. 919, 919, 122 S. Ct. 2583, 2584, 153 L. Ed. 2d 773,
773 (2002). The Eighth Circuit then concluded that Morgan did not
___________________________________
Morgan many cases held that wage claims based on unequal pay for equal work (as
opposed to a failure to promote case) should be treated as continuing violations, post
Morgan cases now hold that the doctrine is no longer truly applicable to wage cases.”
(Footnotes omitted.)).
21
affect the ICRA recovery. See Madison, 330 F.3d at 1057–58. It
reasoned that although Morgan had limited applicability of the
continuing violation theory under federal employment discrimination
law, Iowa had followed a separate course. Id. The Eighth Circuit said,
In [Hy-Vee Food Stores, 453 N.W.2d at 530–31,] the Iowa
Supreme Court adopted the continuing violation doctrine,
permitting recovery for the entire period an employee’s rights
have been violated if at least one act of illegal discrimination
occurred within the [required] period before a complaint was
filed . . . .
Id. at 1054.
Dindinger and Loring rely heavily on Hy-Vee Food Stores and
Madison. However, six months after Madison, we reexamined and
clarified the scope of the continuing violation doctrine under the ICRA.
See Farmland Foods, 672 N.W.2d at 740–41. Farmland Foods involved
claims by an African-American employee of a meat packing plant that he
had been repeatedly discriminated against over a fifteen-year period. Id.
at 737–40. Among other things, the employee alleged Farmland had
discriminated against him with respect to work assignments, work
hours, and discipline. Id. at 738–39. “[M]ost of the evidence . . .
concerned events that predated” the applicable statute of limitations. Id.
at 741.
We made clear that notwithstanding Hy-Vee Food Stores, the
continuing violation doctrine “applies differently to claims of discrete
discriminatory acts than to claims of hostile work environment.”
Farmland Foods, 672 N.W.2d at 741 (citing Morgan, 536 U.S. at 110–21,
122 S. Ct. at 2070–76, 153 L. Ed. 2d at 120–27); see also Hy-Vee Food
Stores, 453 N.W.2d at 527–29. Following the Supreme Court’s lead in
Morgan, we said that “[e]ach discrete discriminatory act or event is
separately actionable, and a claim based on discrimination must be filed
22
within the relevant limitation period.” Farmland Foods, 672 N.W.2d at
741. “This is true,” we added, “even when the discrete discriminatory act
relates to other acts alleged in a timely filed complaint.” Id.
On this basis, we rejected the employee’s racial discrimination
claims as time-barred. Id. at 743. We considered each act of alleged
discrimination on its own and noted that while some complained-of
incidents had occurred within the limitations period, none of those
matters amounted to a materially adverse employment action. Id. at
742–43. Separately, we acknowledged that the employee’s hostile work
environment claim could proceed on a continuing violation theory,
because such claims “involve repeated conduct and are based on the
cumulative impact of separate acts.” Id. at 741 (citing Morgan, 536 U.S.
at 115, 122 S. Ct. at 2073, 153 L. Ed. 2d at 123). But, we found no
substantial evidence to support that claim, even when considering the
totality of the employer’s conduct for the duration of the employee’s
employment. Id. at 743–46.
Thus, in Farmland Foods, we adopted the “discrete acts” approach
that had won the Supreme Court’s unanimous approval in Morgan. Id.
at 741; see also Morgan, 536 U.S. at 110–21, 122 S. Ct. at 2070–76, 153
L. Ed. 2d at 120–27. If an employer commits a discrete act of
discrimination that can be the basis for a civil rights action, the statute
of limitations begins to run on that act, even if the act is repeated and in
that sense continues.
Four years after Farmland Foods, the United States Supreme Court
rendered its controversial Ledbetter decision. See Ledbetter, 550 U.S.
618, 127 S. Ct. 2162, 167 L. Ed. 2d 982 (Alito, J., majority opinion).
That case involved an employee who, for many years, had been paid less
than her male counterparts, allegedly because of discriminatory reviews
23
by her supervisors. Id. at 621–22, 127 S. Ct. at 2165–66, 167 L. Ed. 2d
at 988–89. She had abandoned any claim under the Equal Pay Act and
was only pursuing relief under Title VII. Id. at 621, 127 S. Ct. at 2165,
167 L. Ed. 2d at 988. By a five-to-four margin, the Court held the
discriminatory act that triggered the Title VII limitations period was the
pay-setting decision, not the issuance of the discriminatory paycheck,
and a plaintiff who did not file within the required period after the pay-
setting decision could not recover at all. See id. at 621, 643, 127 S. Ct.
at 2165, 2178, 167 L. Ed. 2d at 988, 1001.
Justice Ginsburg, dissenting with three other justices, urged that
“each payment of a wage or salary infected by sex-based discrimination
constitutes an unlawful employment practice.” Id. at 646, 127 S. Ct. at
2179, 167 L. Ed. 2d at 1003 (Ginsburg, J., dissenting). Her dissent
further noted that in a prior case, the Supreme Court “unanimously held
that an employer . . . committed an unlawful employment practice each
time it paid black employees less than similarly situated white
employees.” Id., 127 S. Ct. at 2179–80, 167 L. Ed. 2d at 1003–04 (citing
Bazemore, 478 U.S. at 395, 106 S. Ct. at 3006, 92 L. Ed. 2d at 328).
The year after Ledbetter, we decided State ex rel. Claypool v. Evans,
757 N.W.2d 166 (Iowa 2008). Claypool was a housing discrimination
case. A condominium owner maintained that a developer had engaged in
disability discrimination by selling a condominium that was not
accessible to him in light of his progressive joint degeneration and
difficulty with walking. Id. at 167–68. Although the complainant bought
the condominium in 1999, he did not file a complaint with the ICRC until
2002. Id. at 167. To try to surmount the developer’s statute of
limitations defense, the ICRC and the complainant relied on the
continuing violation theory. Id. at 171.
 24
We rejected that theory, noting that “the specific discriminatory
practice was the sale of a housing unit designed and constructed to be
inaccessible to a person with disabilities.” Id. at 172. We added, “This
discriminatory practice was complete upon the sale.” Id. We also
discussed the Ledbetter decision, commenting that it “focused on the
issue of continuing violation versus continuing effect.” Id. at 171–72
(citing Ledbetter, 550 U.S. at 624–28, 127 S. Ct. at 2167–69, 167
L. Ed. 2d at 990–93 (Alito, J., majority opinion)). We observed that the
housing case before us involved “a continuing effect of the discriminatory
practice rather than a continuing violation.” Id. at 172. Still, we did not
adopt the specific holding of Ledbetter, and Dindinger and Loring
correctly point out that Claypool is distinguishable on its facts from a
wage discrimination case because there clearly could not have been a
discriminatory practice committed by the developer after it sold the
condominium in 1999. See id. at 167.
The next year, approximately three months before our general
assembly amended the ICRA to add section 216.6A, Congress overturned
Ledbetter by passing the Lilly Ledbetter Fair Pay Act of 2009 (FPA). The
FPA provides that “an unlawful employment practice occurs . . . when an
individual becomes subject to a discriminatory compensation decision or
other practice, . . . including each time wages, benefits, or other
compensation is paid.” Id. at § 3 (codified at 42 U.S.C. 2000e–5(e)), The
FPA also allows the victim of discrimination to recover back pay for up to
two years preceding the filing of the charge. Id.
From the foregoing narrative, we can distill three lessons. First, in
Farmland Foods, we aligned ourselves with the unanimous view of the
Supreme Court in Morgan that the continuing violation doctrine does not
apply to cases involving discrete discriminatory acts, as opposed to
25
hostile work environment claims. See Farmland Foods, 672 N.W.2d at
741; see also Morgan, 536 U.S. at 114–18, 122 S. Ct. at 2073–75, 153
L. Ed. 2d at 122–25. Discrete discriminatory acts are “separately
actionable,” not a basis for invoking the continuing violation theory. Id.
Second, if there is no discriminatory act but only an effect of a past
discriminatory act within the limitations period, then the claim is time-
barred. See Claypool, 757 N.W.2d at 171–72. Third, conduct that is not
separately actionable but may become actionable based upon its
“cumulative impact” may be pursued on a continuing violation theory if
some of the conduct occurred within the limitations period. See
Farmland Foods, 672 N.W.2d at 741.
All of these principles are consistent with the language of the ICRA,
which requires the complaint to be filed with the ICRC “within three
hundred days after the alleged discriminatory or unfair practice
occurred.” Iowa Code § 216.15(13) (2011). Under this wording, which is
similar to the federal wording, the relevant unit of analysis is the
“discriminatory or unfair practice.” Compare id., with Lilly Ledbetter Fair
Pay Act § 3 (codified at 42 U.S.C. 2000e–5(e)). If more than one
discriminatory act has occurred, even if the same type of act is being
repeated, the timeliness of each act should be evaluated individually. If
only one act has occurred, it is sufficient if some of the relevant conduct
occurred within the limitations period.
The question then is how to classify the act of paying a female
employee less than her male counterpart where the discriminatory
reasons for the wage discrepancy originated somewhere in the past. Is
the too-low paycheck (1) a discrete act of discrimination, (2) merely an
effect of prior discrimination, or (3) conduct that, to be actionable, must
be weighed in its overall impact with other conduct?
26
We think the paycheck falls in the first category. Paying an
employee in a protected class less than other employees, if done with
discriminatory intent, is always separately actionable. It does not matter
how many times the conduct occurred, and one does not need to
consider other conduct to determine whether the employer has violated
the law. Thus, under Farmland Foods, the limitations analysis goes
paycheck by paycheck. 672 N.W.2d at 741. A discriminatory pay
practice does not become more discriminatory each time a new check is
paid, unlike a series of harassing incidents that may only amount to a
hostile work environment when accumulated. A paycheck is precisely
the type of discrete practice that we envisioned in Farmland Foods when
we distinguished discrete acts from violations based on cumulative
conduct. Id. 7
On the other hand, we do not agree with the Ledbetter majority (or
the defendants here) that an employer’s issuance of a smaller paycheck
to a protected class employee is merely an “effect” of a prior pay-setting
decision, as opposed to an independent discriminatory act. See
Ledbetter, 550 U.S. at 621, 624–25, 127 S. Ct. at 2165, 2167, 167
L. Ed. 2d at 988, 990. Payment is itself an act; this is not like Claypool
where the developer sold the condominium and, after the sale, could not
7We note that under Iowa Code section 614.1(8), the same result would follow if
the employer failed to pay wages to an employee. The employee may recover only for
those nonpayments that took place within the limitations period. See Gabelmann v.
NFO, Inc., 571 N.W.2d 476, 482 (Iowa 1997).
In 2009, the legislature provided a different statute of limitations for claims
under Iowa Code section 216.6A, allowing the employee to recover “for the period of
time for which the complainant has been discriminated against.” 2009 Iowa Acts ch.
96, § 3 (codified at Iowa Code § 216.15(9)(a)(9)(a)). This language appears to allow the
employee to recover for the entire period of discrimination, so long as some equal pay
violation occurred within 300 days of the employee’s administrative complaint. But the
fact that the legislature inserted this language for section 216.6A claims suggests that it
did not believe the existing language in section 216.15 had that effect.
27
have committed discriminatory acts with respect to that condominium.
See 757 N.W.2d at 172. The law frequently, as in the case of the ICRA,
requires a combination of an act and intent to impose liability. Yet, the
two do not have to arise at the same time so long as they are connected.
For example, would an employer that hired a new female employee be
able to escape liability simply because it based her low compensation on
a discriminatory pay scale it had adopted ten years before? Clearly not. 8
A pay-setting decision alone is not actionable unless accompanied
by unequal payments. Accordingly, it seems unfair to tie the statute of
limitations to an event that, by itself, would be insufficient to trigger
liability. At the same time, an employer may reasonably be held liable for
failing to pay an employee properly at any time within the limitations
period, since the employer always has the ability to reexamine and
correct an improper pay-setting decision.
Other state courts, applying their own states’ civil rights laws, have
determined that disparate paychecks are discrete discriminatory
practices. For example, the Supreme Judicial Court of Massachusetts
declined to apply the continuing violation theory to unequal pay claims
under its state equal rights law. See Silvestris v. Tantasqua Reg’l Sch.
Dist., 847 N.E.2d 328, 338 (Mass. 2006). In Silvestris, two female
teachers brought an action against a school district, alleging they were
8When interpreting the ICRA, we have not always followed federal interpretations
of similar language in the federal civil rights statutes. See Goodpaster v. Schwan’s
Home Serv., Inc., 849 N.W.2d 1, 11–13 (Iowa 2014) (concluding multiple sclerosis can be
a disability under the ICRA). Departure from federal precedent in this case is
appropriate. The United States Supreme Court’s decision in Ledbetter, we believe, is
inconsistent with the language of the ICRA, with Morgan, and with Farmland Foods.
Our decision in Farmland Foods treats each independent discriminatory act as a
separate unit for statute of limitations purposes. 672 N.W.2d at 741. Discrete acts of
discrimination do not become timely merely because they have been repeated, or
untimely merely because they have occurred before.
28
paid less than their male counterparts. Id. at 330. The court ultimately
found no violation of the Massachusetts equal rights law, but in doing so,
it determined the continuing violation theory should not apply to
unequal compensation claims under state law. See id. at 338, 343. The
court decided each paycheck should be treated as a discrete act because
“[a]n alleged inequality can be identified on examination of individual
paychecks, rather than on the evaluation of ongoing wrongful conduct.”
Id. at 338. It noted that applying the continuing violation doctrine
“would eviscerate the one-year statute of limitations set forth in” the
statute. Id. at 338–39. It therefore concluded that pay claims give rise to
a cause of action subject to its own statute of limitations period each
time a paycheck is issued. See id. at 339.
The New Jersey Supreme Court similarly concluded that under its
state wage discrimination law, each payment of unequal wages was an
actionable wrong subject to a two-year statute of limitations. Alexander
v. Seton Hall Univ., 8 A.3d 198, 199 (N.J. 2010). Three female professors
brought an action against Seton Hall University alleging unequal pay on
the basis of sex and age. Id. at 200. The lower court followed the
Ledbetter majority and dismissed the professors’ claims as untimely
because they had not been filed within two years of the pay-setting
decision. See id. at 199. The New Jersey Supreme Court reversed. Id. at
199–200. It declined to follow the approach of the Ledbetter majority and
also declined to apply the continuing violation doctrine to wage
discrimination claims. Id. at 205–06. Instead, it adopted the same
analysis we follow today, noting it had previously approved the rationale
of Morgan, which distinguished between discrete acts of discrimination
and hostile work environment claims. See id. at 203 (citing Morgan, 536
29
U.S. at 115, 122 S. Ct. at 2073–74, 153 L. Ed. 2d at 123). The court
concluded,
Each payment of such discriminatory wages thus constitutes
a renewed separable and actionable wrong that is remediable
under the [wage discrimination law]. The two-year statute of
limitations applies to such violations, cutting off the
untimely portion and, as a result, operating as a limit on the
back period for which a plaintiff may seek recovery . . . .
Id. at 207. The court therefore held the plaintiffs’ claims were timely with
respect only to paychecks received in the two years immediately
preceding the filing of the lawsuit. Id.
In Zuurbier v. Medstar Health, Inc., a female physician alleged pay
discrimination under the District of Columbia’s human rights act. 895
A.2d 905, 906 (D.C. 2006). The United States Court of Appeals for the
D.C. Circuit followed the logic of Morgan to conclude that each
discriminatory paycheck was a discrete act subject to its own limitations
period. Id. at 910–14. The court therefore limited the plaintiff’s recovery
to the three paychecks received within the applicable limitations period.
Id. at 914.
The chief legal counsel of the Illinois Department of Human Rights
has also stated that each paycheck is a discrete incident for purposes of
wage discrimination claims under Illinois law. Budzileni v. Dep’t of
Human Rights, 910 N.E.2d 1190, 1200 (Ill. App. Ct. 2009). On appeal,
the petitioner in that case conceded that her claims for paychecks
received outside the limitations period were untimely. See id. at 1206.
In a 2003 case, the Appellate Division of the New York Supreme
Court relied heavily on then-existing federal precedent to determine that
although each paycheck constitutes a separate harm subject to its own
limitations period, the statute of limitations does not prevent a plaintiff
from introducing evidence of unequal pay that occurred outside the
30
limitations period to establish her prima facie case. Kent v. Papert Cos.,
764 N.Y.S.2d 675, 679–80 (App. Div. 2003). We are unaware of the New
York appellate courts changing their position in light of Ledbetter.
Other courts have pursued different approaches to unequal pay
claims based on their respective state-law statutes and precedents. In
Prairie View A&M University v. Chatha, the Texas Supreme Court
followed the rationale espoused in the Ledbetter majority that the pay-
setting decision triggers the limitations period while subsequent
paychecks are merely lingering effects of the discrimination. 381 S.W.3d
500, 510 (Tex. 2012). The court referenced a previous case in which it
held the limitations period for employment discrimination “commences
‘when the employee is informed of the allegedly discriminatory
employment decision, not when that decision comes to fruition.’ ” Id. at
505 (quoting Specialty Retailers v. DeMoranville, 933 S.W.2d 490, 493
(Tex. 1996)). Based on the logic of this prior case, the Texas Supreme
Court concluded this “rule applies with equal force in the context of pay
discrimination decisions.” Id. at 509. It held only the pay-setting
decision was a discrete act and “[s]ubsequent paychecks . . . are merely
consequences of past discrimination.” Id. at 510.
In contrast to the Texas approach, the Wisconsin Court of Appeals
recently applied the continuing violation principle to wage discrimination
claims. Rice Lake Harley Davidson v. State, 855 N.W.2d 882, 893–94
(Wis. Ct. App. 2014). The court noted that Wisconsin had chosen to
apply the continuing violation theory to unequal pay claims nearly
twenty years earlier, before Morgan was decided. See id. at 893 (citing
Abbyland Processing v. State, 557 N.W.2d 419, 422 (Wis. 1996)). The
court declined to follow intervening federal interpretations of wage
31
discrimination cases and instead adhered to prior authority of the
Wisconsin Supreme Court. See id. at 894–95.
Because of specific Ohio statutory language, the Ohio Supreme
Court has applied the continuing violation doctrine to its state wage
discrimination law. See Featzka v. Millcraft Paper Co., 405 N.E.2d 264,
266–67 (Ohio 1980). Ohio law provides for recovery “ ‘from the date of
the commencement of the violation.’ ” Id. at 266 (quoting Ohio Rev. Code
Ann. § 4111.17(D)). The court relied on this language to conclude, “the
legislature clearly indicated its intent to permit recovery from the
beginning of the prohibited discrimination until its termination.” Id. at
267. Similarly, in a certified question from the Eastern District of
Tennessee, the Supreme Court of Tennessee determined that wage
discrimination claims under Tennessee law were continuing violations.
Booker v. Boeing Co., 188 S.W.3d 639, 641 (Tenn. 2006). It reached this
conclusion based on the language of the state human rights act, which
allowed recovery if a claim was filed within one year “ ‘after the alleged
discriminatory practice ceases.’ ” Id. at 642 (quoting Tenn. Code. Ann.
§ 4–21–311(d) (2005)). The court contrasted this wording with that of
Title VII, which allowed recovery within a set period “ ‘after the alleged
unlawful employment practice occurred.’ ” Id. at 648 (quoting 42 U.S.C.
2000e–5(e)(1)). The court reasoned a discriminatory pay rate “does not
cease each time an employee receives a paycheck” but only “when the
employer brings the employee into parity with his or her peers.” Id. at
648. Therefore, the court determined the legislature had intended to
incorporate the continuing violation doctrine into the wage
discrimination statute by using the word “ceases.” See id.
Except for the new cause of action added in 2009, the ICRA does
not have language as in Ohio or Tennessee that would allow the claimant
32
to revert to the date when the employer initially discriminated against the
employee. And unlike Wisconsin, we have expressly adopted the discrete
acts approach to the statute of limitations set forth in Morgan. See
Farmland Foods, 672 N.W.2d at 741. We therefore believe that the
District of Columbia, Illinois, Massachusetts, New Jersey, and New York
have it right: Separate discriminatory paychecks should be evaluated
separately for limitations purposes. See Zuurbier, 895 A.2d at 910–14;
Budzileni, 910 N.E.2d at 1200 (noting the chief legal counsel’s
instruction that “each alleged payment of unequal wages [is] a separate
and discrete incident”); Silvestris, 847 N.E.2d at 338; Alexander, 8 A.3d
at 207; Kent, 764 N.Y.S.2d at 679. 9
9Dindinger and Loring also rely on a longstanding ICRC regulation, which
provides:
3.3(2) Continuing violation. If the alleged unlawful discriminatory
practice or act is of a continuing nature, the date of the occurrence of the
alleged unlawful practice shall be deemed to be any date subsequent to
the commencement of the alleged unlawful practice up to and including
the date upon which the unlawful practice has ceased.
Iowa Admin. Code r. 161—3.3(2). We agree with Allsteel and Mills that this regulation
essentially restates the present question without answering it. The question remains:
Were there multiple discriminatory acts or was there one act of a continuing nature?
Notably, when we addressed the continuing violation theory in Claypool, we did not give
any deference to the ICRC’s views or cite to this regulation. See 757 N.W.2d at 169,
171–72 (reviewing for correction of errors at law).
In Renda v. Iowa Civil Rights Commission, a case involving the ICRC, we
discussed at length when judicial deference is owed to an administrative agency’s
statutory interpretation. See 784 N.W.2d 8, 10–15 (Iowa 2010); see also Iowa Code
§§ 17A.19(10)(c), (l). We emphasized that “each case requires a careful look at the
specific language the agency has interpreted as well as the specific duties and authority
given to the agency with respect to enforcing particular statutes.” Renda, 784 N.W.2d
at 13. We have given deference to agency interpretations of “a substantive term within
the special expertise of the agency,” but not a term with “an independent legal definition
that is not uniquely within the subject matter expertise of the agency.” Id. at 14.
There, we ultimately concluded the ICRC was not clearly vested with authority to
interpret the terms “employee” and “dwelling.” See id. at 14–15. Here, the question is
really one of interpreting the term “practice”—do we have one or more than one? Like
the definitions of employee and dwelling, this matter is not uniquely within the
expertise of the ICRC. Hence, we believe the ICRC’s regulation would not be entitled to
deference, even if it answered the question.
33
For all these reasons, we conclude an employee can assert a wage
discrimination claim under Iowa Code section 216.6. The plaintiff’s lost-
income recovery is based upon pay that should have been received within
the 300-day limitations period set forth in Iowa Code section 216.15(13).
IV. Conclusion.
We have provided the answers to the certified questions as set
forth above. Costs shall be equally divided between the parties. Iowa
Code § 684A.5.
CERTIFIED QUESTIONS ANSWERED.
___________________________________
The rule that the statute of limitations applies separately to separately
actionable harms is consistent with the common law. See Hegg v. Hawkeye Tri-County
REC, 512 N.W.2d 558, 559–60 (Iowa 1994) (“[W]here the wrongful act is continuous or
repeated, so that separate and successive actions for damages arise, the statute of
limitations runs as to these latter actions at the date of their accrual, not from the date
of the first wrong in the series.”); 1 Dan B. Dobbs et al., The Law of Torts § 245, at 892
(2d ed. 2011) (“[I]f the continuing negligence causes a series of separate harms, each
one actionable, the statute of limitations may begin on each harm separately, so that
the plaintiff might be barred as to earlier acts of negligence but not as to later ones.”).