IN THE SUPREME COURT OF IOWA

No. 17–1892

Filed June 7, 2019

GREGORY HAWKINS,

Appellee,

vs.

GRINNELL REGIONAL MEDICAL CENTER, DAVID NESS, and DEBRA 

NOWACHEK,

Appellants.

Appeal from the Iowa District Court for Poweshiek County, Randy S. 

DeGeest, Judge.

An employer and its agents appeal an adverse jury verdict in an 

employment discrimination and retaliation case. REVERSED AND 

REMANDED.

Randall D. Armentrout, Mary E. Funk, Debra Hulett, and David 

Bower of Nyemaster Goode, P.C., Des Moines, for appellants.

Katie Ervin Carlson, Nathan Borland, and Brooke Timmer of 

Timmer & Judkins, P.L.L.C., West Des Moines, for appellee.

Thomas M. Boes and Catherine M. Lucas of Bradshaw, Fowler, 

Proctor & Fairgrave, P.C., Des Moines, for amicus curiae Iowa Defense 

Counsel Association, Iowa Insurance Institute, and Iowa Association of 

Business and Industry.
2

Joel E. Fenton, Des Moines, for amicus curiae Iowa Association for 

Justice.
3

WIGGINS, Justice. 

A terminated employee sued his former employer and the employer’s 

agents under the Iowa Civil Rights Act (ICRA), alleging they discriminated 

against him because of his age and his disability—i.e., his status as a 

cancer patient—and retaliated against him due to his refusal to retire or 

quit. The case proceeded to trial, and a jury returned a verdict for the 

plaintiff, awarding him backpay and emotional distress damages. The 

district court awarded the plaintiff frontpay and attorney fees. The 

defendants appealed the verdict, raising various issues. We reverse and 

remand for a new trial.

I. Background Facts.

Grinnell Regional Medical Center (GRMC) hired Gregory Hawkins as 

a laboratory technologist in 1976 when Hawkins was twenty-two-years 

old. In 1985, GRMC promoted Hawkins to laboratory director. As the 

laboratory director, Hawkins was accountable for daily operations of 

GRMC’s laboratory, histology, and mobile services. Hawkins held this 

position until his termination on June 3, 2015. At all times relevant to 

this lawsuit, David Ness was GRMC’s vice president of operations and 

Hawkins’s direct supervisor and Debra Nowachek was GRMC’s human 

resources director. 

In November 2013, doctors diagnosed Hawkins with stage III breast 

cancer. On December 4, Hawkins underwent a left breast surgical 

mastectomy followed by chemotherapy and radiation treatments. During 

this time, Hawkins took family and medical leave pursuant to GRMC’s 

family and medical leave policy and the Family and Medical Leave Act 

(FMLA). On March 19, 2014, while still undergoing weekly chemotherapy 

treatments, Hawkins returned to work part-time and used the remainder 

of his FMLA leave for partial-day absences through May 17. After he 
4

exhausted his FMLA allowance, GRMC granted Hawkins extra leave 

pursuant to its policy, and Hawkins continued working part-time. 

On June 2, Ness, Nowachek, and GRMC’s chief executive officer, 

Todd Linden, met with Hawkins, who reported that his doctor instructed 

him to remain on a part-time schedule indefinitely. Linden told Hawkins 

GRMC needed someone in the laboratory full-time so GRMC would no 

longer be able to employ Hawkins as laboratory director. Linden asked 

Hawkins to resign within ninety days. Shortly after the meeting, Hawkins 

learned he would finish cancer treatments and be able to return to work 

full-time by December 2014. Hawkins emailed Ness to share this news, 

expressing that he wished to keep his job at GRMC and GRMC should not 

force him to resign. Ness forwarded the email to Nowachek and Linden, 

commenting, “He’s going to make us term him.”

On June 19, GRMC featured Hawkins in a public advertisement for 

chemotherapy services. That same day, Ness and Linden told Hawkins he 

had only thirty days left to resign or retire, otherwise GRMC would 

terminate him. Hawkins refused to resign or retire. Following this, 

GRMC’s board of directors’ executive committee met and decided to give 

Hawkins additional recovery time. On July 9, despite the board giving 

Hawkins extra recovery time, Ness and Nowachek forced Hawkins to take 

an unwanted leave of absence and appointed an interim laboratory 

director. 

On October 6, Hawkins returned to GRMC full-time as the 

laboratory director. Three weeks before his return, on September 16, 

Hawkins emailed Ness, Nowachek, and Linden to confirm that he could 

return to work without any retaliation. From December 2014 through May 

2015, GRMC reported performance issues with Hawkins’s work. 
5

On May 13, 2015, Hawkins filed a complaint with the Iowa Civil 

Rights Commission, alleging age discrimination, disability discrimination, 

and retaliation. On May 22, Ness emailed the GRMC board to discuss 

firing Hawkins. On June 3, three weeks after Hawkins filed his civil rights 

complaint, GRMC fired Hawkins. 

II. Proceedings. 

Hawkins filed his ICRA suit against GRMC, Ness, Nowachek, and 

Linden in district court on February 4, 2016.1 He claimed GRMC 

discriminated against him because of his age and disability—i.e., his 

status as a cancer patient—and retaliated against him for refusing to 

resign. GRMC contended it did not terminate Hawkins for a discriminatory 

or retaliatory reason but rather because of his poor job performance. 

The jury returned a verdict in Hawkins’s favor on all claims against 

GRMC and awarded Hawkins $222,009.68 in backpay, $2,000,000 for 

past emotional distress, and $2,280,000 for future emotional distress. 

On August 8, 2017, GRMC filed a motion for a new trial and 

remittitur of damages. On September 5, Hawkins moved for equitable 

relief and attorney fees. The district court denied GRMC’s motion, granted 

Hawkins’s motion, and awarded Hawkins $241,746 in frontpay through 

December 31, 2019, and $615,208 in attorney fees. 

GRMC appeals. We will discuss other facts as needed.

III. Issues.

Although GRMC raises five issues on appeal, we need to address 

only the evidentiary hearsay challenge because that issue is dispositive. 

Nevertheless, we also address the challenge to the same-decision jury 

instruction because that issue may reoccur on retrial. 

 1Hawkins subsequently dismissed Linden as a defendant. For purposes of this 

decision, we will refer to all remaining defendants as GRMC.
6

IV. Whether the District Court Erred in Admitting Hearsay.

We generally review challenges to district court decisions to exclude 

or admit evidence for an abuse of discretion. State v. Jordan, 663 N.W.2d 

877, 879 (Iowa 2003). However, we review challenges to hearsay and other 

evidence implicating the interpretation of a rule of evidence for correction 

of errors at law. State v. Paredes, 775 N.W.2d 554, 560 (Iowa 2009). We 

also apply this standard of correction of errors at law “to determin[e]

whether statements come within an exception to the general prohibition 

on hearsay evidence.” Id. Finally, unless the record shows the contrary, 

we presume improperly admitted hearsay evidence is prejudicial to the 

nonoffering party. State v. Elliott, 806 N.W.2d 660, 669 (Iowa 2011).

“ ‘Hearsay’ means a statement that: (1) The declarant does not make 

while testifying at the current trial or hearing; and (2) A party offers into 

evidence to prove the truth of the matter asserted in the statement.” Iowa 

R. Evid. 5.801(c). We must analyze the purposes for which a party offers 

the alleged hearsay to determine if it is admissible. State v. Sowder, 394 

N.W.2d 368, 371 (Iowa 1986); State v. Horn, 282 N.W.2d 717, 724 (Iowa 

1979). We do not rely on the purpose urged by the party offering the 

alleged hearsay; rather we look at the true purpose for which the party 

offered the testimony. Sowder, 394 N.W.2d at 371. We make our 

determination on “an objective finding based on the facts and 

circumstances developed by the record.” Id.

Hawkins introduced exhibit 173, which consisted of seventeen cards 

and notes he received from friends and former coworkers. Four notes were 

general well-wishes. One of the cards was a “Happy Boss’s Day” card, 

signed by employees of the laboratory under Hawkins’s supervision. 

Several other cards expressed happiness and gratitude to have worked

alongside Hawkins at the laboratory. 
7

At least four notes expressed disdain toward GRMC for its 

termination of Hawkins. One note read, “I was appalled to hear from 

Marge that you lost your job . . . you did not deserve this. I am so sorry 

this happened to you. Those responsible should be ashamed.” Another 

note read, “I was in shock when Dr. J. B. Paulson told me of your release 

from GRMC. He was irate! I do not know or need to know the details –

but it was an injustice.” A third note read, “Just a note to let you know 

how sick we both were when we heard you were no longer at the hospital!! 

So disappointed to see and hear what is going on at GRMC!!” A fourth 

note read, “So proud to hear about your holding GRMC to account for their 

treatment of staff.” A separate note stated GRMC had discriminated 

against Hawkins based on his age, reading, “I learned from Diane 2 weeks 

ago that the past 1–2 years have been tremendously difficult as you dealt 

with not only cancer but also age discrimination at work.” Lastly, another 

note from what appears to be a former colleague of Hawkins read, “I wish 

you the best with this little mess, but I know you are doing the right thing 

not only for yourself but all of us.” 

Hawkins did not call any of these note authors to testify at trial. 

GRMC objected to exhibit 173’s admissibility on the grounds of relevance 

and hearsay. Over this objection, the trial court admitted it.

Hawkins claims he offered exhibit 173 to rebut GRMC’s evidence 

that he was incompetent, unresponsive, and an unmotivated manager and 

that the laboratory suffered because he failed to supervise employees

properly. Thus, it appears the purpose of the notes and cards was to show 

GRMC’s purported reasons for firing Hawkins were not true. GRMC’s 

reasons for firing Hawkins are a central issue for the jury to decide in this 

case. Consequently, we find Hawkins offered many parts of exhibit 173 to 

prove the truth of the matter asserted in the notes and cards: that he was 
8

competent, responsive, and a motivated manager and that he properly 

supervised the laboratory. Accordingly, we find the court erred in 

admitting exhibit 173. 

Just because the court erred in admitting hearsay does not mean 

we automatically reverse the judgment. “A party may claim error in a 

ruling to admit or exclude evidence only if the error affects a substantial 

right of the party . . . .” Iowa R. Evid. 5.103(a). When analyzing whether 

inadmissible hearsay requires reversal we start with the proposition that 

“admission of hearsay evidence over a proper objection is presumed to be 

prejudicial error unless the contrary is affirmatively established.” State v. 

Nims, 357 N.W.2d 608, 609 (Iowa 1984) (en banc). “The contrary is 

affirmatively established if the record shows the hearsay evidence did not 

affect the jury’s finding[s in its verdict].” Elliott, 806 N.W.2d at 669.

One way to establish the hearsay evidence did not have an impact 

on the jury’s verdict is to show there was overwhelming evidence on the 

issue for which the hearsay was introduced, making the prejudicial impact 

of the hearsay evidence insignificant. State v. Hallum, 585 N.W.2d 249, 

256 (Iowa 1998) (overwhelming evidence of the defendant’s guilt, making 

the prejudicial impact of the hearsay evidence insignificant), vacated on 

other grounds, 527 U.S. 1001, 1001, 119 S. Ct. 2335, 2335 (1999). Here, 

there was substantial evidence presented by both sides as to why GRMC 

fired Hawkins. Thus, we cannot find the record overwhelmingly

established GRMC fired Hawkins because of his age or disability or in

retaliation. 

Another way to demonstrate the hearsay evidence did not have an 

impact on the jury’s verdict is to show the hearsay evidence was merely 

cumulative. Elliott, 806 N.W.2d at 669. “If the record contains cumulative 
9

evidence in the form of testimony, the hearsay testimony’s trustworthiness 

must overcome the presumption of prejudice.” Id. 

Here, Hawkins had at least six employees of GRMC testify to the 

same matters contained in exhibit 173. These witnesses corroborated that 

Hawkins was competent, responsive, and a motivated manager and that 

he properly supervised the laboratory. But this in and of itself does not 

establish the wrongfully admitted hearsay was merely cumulative. 

Exhibit 173 contained statements in addition to those saying

Hawkins was competent, responsive, and a motivated manager and that 

he properly supervised the laboratory. Other statements contained in 

exhibit 173 urged GRMC should be held responsible for Hawkins losing 

his job and correct the injustice it created by firing Hawkins. Statements 

in exhibit 173 also indicated Hawkins was doing the right thing for the 

staff at GRMC by holding GRMC responsible for its actions against 

Hawkins. Finally, some statements in exhibit 173 opined that GRMC 

committed discrimination against Hawkins because of his age and cancer. 

These types of statements were not cumulative of the evidence in the 

record relating to the purpose for which the hearsay statements were 

offered. They went well beyond establishing that Hawkins was competent, 

responsive, and a motivated manager and that he properly supervised the 

laboratory. These statements were in the record without any foundation

and not subject to the test of cross-examination. The statements were 

inflammatory and prejudicial. See Gacke v. Pork Xtra, L.L.C., 684 N.W.2d 

168, 183–84 (Iowa 2004) (finding similar hearsay evidence “inflammatory 

and clearly prejudicial”). 

Additionally, we note this evidence went to the primary issue in this 

case—why GRMC fired Hawkins. See id. at 184 (noting hearsay evidence 

at issue directly addressed a central issue in the case). When inadmissible 
10

hearsay evidence directly addresses a hotly contested central dispute of

the parties, it is harder for us to find the evidence nonprejudicial. See, 

e.g., Madison v. Colby, 348 N.W.2d 202, 204 (Iowa 1984) (en banc) (finding 

erroneously admitted hearsay was prejudicial when it related to disputed

significant issues). Thus, we find the court’s erroneous admission of 

hearsay evidence affected a substantial right of GRMC. 

Because the record failed to rebut the presumption of prejudice 

associated with the admitted hearsay evidence, we reverse and remand for 

a new trial. See Gacke, 684 N.W.2d at 184 (granting a new trial based on 

erroneous and prejudicial admission of hearsay).

V. Issue That May Occur on Retrial.

Although we find GRMC’s hearsay evidentiary challenge dispositive 

on this appeal, we also elect to address the district court’s refusal to 

submit GRMC’s requested same-decision jury instruction because this 

issue may occur on retrial. See, e.g., Krogmann v. State, 914 N.W.2d 293, 

325 (Iowa 2018) (addressing nondispositive issue that may occur on 

retrial).

A. The McDonnell Douglas Test. The Supreme Court formulated 

the McDonnell Douglas test in 1973. See McDonnell Douglas Corp. v. Green, 

411 U.S. 792, 802–05, 93 S. Ct. 1817, 1824–26 (1973). In a Title VII 

employment discrimination case, the employee must show a prima facie 

case of discrimination. Id. at 802, 93 S. Ct. at 1824. The burden then 

shifts to the employer to show a legitimate, nondiscriminatory reason for 

the employer’s action. Id. If the employer shows a legitimate, 

nondiscriminatory reason for its action, the burden shifts back to the 

employee to show the reason for the employer’s action was pretexual. Id.

at 804, 93 S. Ct. at 1825. 
11

B. The Price Waterhouse Test. In 1989, the Supreme Court 

adopted the same-decision framework in Price Waterhouse v. Hopkins, 490 

U.S. 228, 258, 109 S. Ct. 1775, 1795 (1989) (plurality opinion), 

superseded by statute, Civil Rights Act of 1991, Pub. L. No. 102-166, 

§ 107(a), 105 Stat. 1071, 1075 (codified at 42 U.S.C. § 2000e–2(m) (2012)); 

id. at 259–60, 109 S. Ct. at 1795–96 (White, J., concurring in the 

judgment); id. at 261, 279, 109 S. Ct. at 1796, 1806 (O’Connor, J., 

concurring in the judgment). The case established that when a Title VII 

plaintiff proves that a discriminatory factor played a motivating part in the 

employer’s decision (i.e., there were mixed motives), the employer may 

avoid liability by presenting evidence that it would have made the same 

decision in the absence of the discriminatory motive. Id. at 258, 109 S. Ct. 

at 1795 (plurality opinion); id. at 259–60, 109 S. Ct. at 1795–96 (White, 

J., concurring in the judgment); id. at 261, 279, 109 S. Ct. at 1796, 1806 

(O’Connor, J., concurring in the judgment).

Two years after Price Waterhouse, Congress enacted the Civil Rights 

Act of 1991, which modified Title VII by codifying the motivating-factor 

standard and same-decision framework adopted by the Supreme Court in 

Price Waterhouse. Civil Rights Act of 1991 § 107, 105 Stat. at 1075–76 

(codified as amended as 42 U.S.C. §§ 2000e–2(m), 2000e–5(g)(2)(B)). Under 

§ 2000e–2(m), a complaining party establishes an illegal employment 

practice when it “demonstrates that race, color, religion, sex, or national 

origin was a motivating factor for any employment practice, even though 

other factors also motivated the practice.” 42 U.S.C. § 2000e–2(m). 

Notably, Congress amended the statute to not only prohibit 

discrimination in employment “because of [an] individual’s race, color, 

religion, sex, or national origin,” e.g., 42 U.S.C. § 2000e–2(a) (1988) 

(emphasis added), but also to prohibit employment practices where “race, 
12

color, religion, sex, or national origin was a motivating factor,” 42 U.S.C. 

§ 2000e–2(m) (2012) (emphasis added). Compare id. § 2000e–2, with 42 

U.S.C. § 2000e–2 (1988). The purpose, as stated by Congress, was to 

“provide additional protection against unlawful discrimination in 

employment.” Civil Rights Act of 1991 § 2(3), 105 Stat. at 1071 (codified 

at 42 U.S.C. § 1981 note (2012) (Congressional Findings)). 

Section 2000e–5(g)(2)(B) provides, 

(B) On a claim in which an individual proves a violation 

under section 2000e–2(m) of this title and a respondent 

demonstrates that the respondent would have taken the same 

action in the absence of the impermissible motivating factor, 

the court—

(i) may grant declaratory relief, injunctive relief 

(except as provided in clause (ii)), and attorney’s fees 

and costs demonstrated to be directly attributable only 

to the pursuit of a claim under section 2000e–2(m) of 

this title; and

(ii) shall not award damages or issue an order 

requiring any admission, reinstatement, hiring, 

promotion, or payment . . . . 

42 U.S.C. § 2000e–5(g)(2)(B). 

C. Proper Analysis Under Iowa Law. Our analysis begins by 

examining the text of the statute. Iowa Code section 216.6(1)(a) forbids 

discriminatory employment practices based on a protected characteristic, 

while section 216.11(2) forbids discriminatory and retaliatory employment 

practices because the employee engaged in a protected activity. Iowa Code 

§§ 216.6(1)(a), .11(2) (2015). The ICRA, in relevant part, states,

It shall be an unfair or discriminatory practice for any:

a. Person to . . . discharge any employee, or to 

otherwise discriminate in employment against . . . any 

employee because of the age . . . or disability of such . . . 

employee . . . . 
13

Id. § 216.6(1)(a). The ICRA further states, 

It shall be an unfair or discriminatory practice for: 

. . . .

2. Any person to discriminate or retaliate against 

another person . . . because such person has lawfully opposed 

any practice forbidden under this chapter . . . or has filed a 

complaint . . . under this chapter.

Id. § 216.11(2). 

In interpreting our civil rights statute, we have looked at the 

similarities between the language used in the federal and our civil rights 

acts. See, e.g., Haskenhoff v. Homeland Energy Sols., LLC, 897 N.W.2d 

553, 571–72 (Iowa 2017); DeBoom v. Raining Rose, Inc., 772 N.W.2d 1, 7

(Iowa 2009). But we should also be inclined to consider the differences.

See, e.g., Haskenhoff, 897 N.W.2d at 635 (Appel, J., concurring in part and 

dissenting in part) (joined by Chief Justice Cady, and Justices Wiggins and 

Hecht); see also Simon Seeding & Sod, Inc. v. Dubuque Human Rights 

Comm’n, 895 N.W.2d 446, 464 (Iowa 2017) (“We will not add a requirement 

to a statute that the legislature chose to omit.”); Hawkeye Land Co. v. Iowa 

Utils. Bd., 847 N.W.2d 199, 210 (Iowa 2014) (“[L]egislative intent is 

expressed by what the legislature has said, not what it could or might have 

said. . . . Intent may be expressed by the omission, as well as the inclusion, 

of statutory terms.” (quoting State v. Beach, 630 N.W.2d 598, 600 (Iowa 

2001))). 

The ICRA does not contain language similar to Title VII’s that allows 

an employer the opportunity to demonstrate it would have made the same 

decision “in the absence of the impermissible motivating factor.” Compare 

42 U.S.C. § 2000e–5(g)(2)(B), with Iowa Code ch. 216. The Iowa legislature 
14

has amended the ICRA multiple times since 1991.2 It could have amended 

the ICRA to reflect the same changes that Congress chose to make, 

including the provisions incorporating the Supreme Court’s interpretation 

of Title VII as including a same-decision defense. See 42 U.S.C. § 2000e–

5(g)(2)(B); Price Waterhouse, 490 U.S. at 258, 109 S. Ct. at 1795 (plurality 

opinion); id. at 259–60, 109 S. Ct. at 1795–96 (White, J., concurring in the 

judgment); id. at 261, 279, 109 S. Ct. at 1796, 1806 (O’Connor, J., 

concurring in the judgment). It chose not to do so.

In DeBoom, we discussed the burden on plaintiffs who bring claims 

under the ICRA. See 772 N.W.2d at 12–13. We said a plaintiff “need only 

demonstrate ‘termination occurred under circumstances giving rise to an 

inference of discrimination’ and his or her status as a member of a 

protected class was a determining factor in the decision to terminate 

employment.” Id. at 13 (quoting Smidt v. Porter, 695 N.W.2d 9, 14 (Iowa 

2005)). We discussed that the term a determining factor is better stated as 

a motivating factor because a determining factor indicates a higher burden 

for the plaintiff, which “is not required by either the Iowa Civil Rights Act 

or case law.” Id. at 13–14.

Though we have interpreted the “because of” language in the ICRA 

as requiring the plaintiff to show protected status as a motivating factor, 

we have not interpreted the language as alleviating liability from an 

employer that engages in the prohibited conduct but demonstrates it 

would have made the same decision in the absence of the impermissible 

 2For instance, it added sexual orientation and gender identity as protected bases 

in 2007 and wage discrimination as a prohibited action in 2009. See 2009 Iowa Acts 

ch. 96 (codified as amended at Iowa Code §§ 216.2(15), .6A, .15(9)(a)(9)); 2007 Iowa Acts 

ch. 191 (codified as amended throughout scattered sections of Iowa Code ch. 216). See 

generally Iowa Civil Rights Comm’n, Civil Rights: Celebrating 50 Years of Higher Quality 

Through Equality 4 (2015), https://icrc.iowa.gov/sites/default/files/publications/

2016/Civil%20Rights%20Toolkit%20updated.pdf. 
15

motivating factor. See Haskenhoff, 897 N.W.2d at 635; DeBoom, 772 

N.W.2d at 5–6, 12–14.

We have mentioned the same-decision defense in dicta. See 

McQuistion v. City of Clinton, 872 N.W.2d 817, 828 n.4 (Iowa 2015) (“[T]he 

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) (“Once the employee proves a mixed motive, the 

burden of proof shifts to the employer to show that it would have made the 

same decision in the absence of the discriminatory motive.”); Landals v. 

George A. Rolfes Co., 454 N.W.2d 891, 894 (Iowa 1990) (“[T]he employer 

has the burden of proving by a preponderance of the evidence that it would 

have made the same decision even if it had not considered the improper 

factor.”).3 In none of those cases did we actually apply the same-decision 

defense. 

We also look to the purpose of the statute to determine legislative 

intent. See State v. Allen, 708 N.W.2d 361, 366 (Iowa 2006). The purpose 

of the ICRA is “ ‘to eliminate unfair and discriminatory practices in . . . 

employment’ and ‘correct a broad pattern of behavior rather than merely 

affording a procedure to settle a specific dispute.’ ” Cote v. Derby Ins. 

Agency, Inc., 908 N.W.2d 861, 865 (Iowa 2018) (quoting Simon Seeding & 

Sod, 895 N.W.2d at 462). We are to construe the chapter broadly to 

effectuate its purposes. Iowa Code § 216.18(1). Title VII contains no 

 3That we mentioned the same-decision defense in these cases could be seen as an 

endorsement of the defense. However, that we never actually applied the defense under 

the ICRA is telling. The same-decision defense instruction was apparently given in Rivera 

v. Woodward Resource Center, but we declined to reach the issue on appeal because error 

was not preserved. 865 N.W.2d 887, 892 (Iowa 2015). That case was a wrongfuldischarge-in-violation-of-public-policy case, not a case brought under the ICRA. Id. at 

889. 
16

similar language. Pippen v. State, 854 N.W.2d 1, 28 (Iowa 2014). As we 

said in Pippen,

An Iowa court faced with competing legal interpretations of 

the Iowa Civil Rights Act must keep in mind the legislative 

direction of broadly interpreting the Act when choosing among 

plausible legal alternatives. Any state court decision that 

adopts a narrow construction of Title VII by the United States 

Supreme Court without confronting the requirement in Iowa 

law that the Iowa Civil Rights Act be interpreted broadly 

misses an essential difference in state and federal civil rights 

laws.

Id. 

Further, “[r]ecognition of the independent character of state civil 

rights statutes is particularly important when Congress passes legislation 

designed to overcome decisions of the United States Supreme Court 

narrowly interpreting civil rights statutes.” Id. at 29. In sum, while federal 

courts’ interpretations of the federal civil rights statute are illustrative and 

instructive, we are by no means bound by their construction when 

interpreting the ICRA. See Hubbard v. State, 163 N.W.2d 904, 909 (Iowa 

1969).

We look also to other jurisdictions for guidance in interpreting the 

ICRA. See id. States have taken different approaches in their 

interpretations. Minnesota, for instance, applies the McDonnell Douglas

analysis to all cases, even mixed-motive cases, not the Price Waterhouse

analysis. See Anderson v. Hunter, Keith, Marshall & Co., 417 N.W.2d 619, 

626 (Minn. 1988) (en banc). While the Minnesota Supreme Court 

considered the issue before Price Waterhouse, it still used the McDonnell 

Douglas test in later cases. See, e.g., Hoover v. Norwest Private Mortg. 

Banking, 632 N.W.2d 534, 542 (Minn. 2001) (en banc). Kentucky, too, 

does not distinguish between mixed-motive and single-motive cases. See, 
17

e.g., Mendez v. Univ. of Ky. Bd. of Trs., 357 S.W.3d 534, 539–43 (Ky. Ct. 

App. 2011). 

Alaska has adopted the same-decision instruction in mixed-motive 

cases. See Kinzel v. Discovery Drilling, Inc., 93 P.3d 427, 433–34 (Alaska 

2004). The Alaska Supreme Court explained, 

In cases where there is direct evidence of discrimination, we 

. . . apply a mixed-motive analysis, which recognizes that 

discriminatory employment decisions may not be motivated 

solely by a prohibited characteristic such as race or sex, but 

may be “based on a mixture of legitimate and illegitimate 

considerations.” 

Id. at 434 (quoting Era Aviation, Inc. v. Lindfors, 17 P.3d 40, 44 (Alaska 

2000), superseded by regulation on other grounds, 29 C.F.R. § 541.301(d) 

(2004), as recognized by Moody v. Royal Wolf Lodge, 339 P.3d 636, 640–

42 (Alaska 2014)). Texas also has adopted the same-decision-defense 

instruction for mixed-motive cases. See Reber v. Bell Helicopter Textron, 

Inc., 248 S.W.3d 853, 858–59 (Tex. App. 2008). However, Texas’s statute 

closely mirrors the Federal Title VII, with specific language stating, 

In a complaint in which a complainant proves a violation 

under Subsection (a) and a respondent demonstrates that the 

respondent would have taken the same action in the absence 

of the impermissible motivating factor, the court may grant 

. . . attorney’s fees and costs . . . but may not award damages. 

Id. at 857 (alterations in original) (quoting Tex. Lab. Code Ann. § 21.125(b) 

(Vernon 2006)). 

In Iowa, we have taken the first step and adopted the motivatingfactor standard under our statutes rather than the determining-factor 

standard. Haskenhoff, 897 N.W.2d at 634, 637; DeBoom, 772 N.W.2d at 

13. The motivating-factor standard is a lower standard than the 

determining-factor standard. DeBoom, 772 N.W.2d at 13. Prior to 

Congress amending the federal civil rights statute, the Supreme Court 
18

decided that when the employee gets the motivating-factor standard for 

causation, it is only fair to allow the employer an affirmative defense. Price 

Waterhouse, 490 U.S. at 244–45, 109 S. Ct. at 1787–88 (plurality opinion). 

Thus, when an employee proves discrimination was a motivating factor in 

the employer’s actions, the employer could avoid liability “by proving by a 

preponderance of the evidence that it would have made the same decision 

even if it had not taken the plaintiff’s gender [or other protected 

characteristics] into account.” Id. at 258, 109 S. Ct. at 1795.

Although we have said it only in dicta, we believe that under the 

ICRA an employer should be entitled to the same-decision affirmative 

defense because we have adopted the motivating-factor test for causation 

in ICRA discrimination cases. This will allow an employer to avoid 

damages liability when the employee proves by a preponderance of the 

evidence that the discrimination was a motivating factor in the employer’s 

actions. 

Therefore, in discrimination and retaliation cases under ICRA, we 

apply the Price Waterhouse motivating-factor standard in instructing the 

jury and the defendant is entitled to an instruction on the same-decision

defense recognized in Price Waterhouse if properly pled and proved. See

Iowa R. Civ. P. 1.421 (“Every defense to a claim for relief in any pleading 

must be asserted in the pleading responsive thereto, or in an amendment 

to the answer made within 20 days after service of the answer, or if no 

responsive pleading is required, then at trial.”). To clarify, we no longer 

rely on the McDonnell Douglas burden-shifting analysis and 

determinating-factor standard when instructing the jury.

VI. Conclusion.

We find the district court erred in admitting hearsay and the hearsay 

was not harmless. Accordingly, we reverse the judgment of the district 
19

court and remand for a new trial. Upon retrial, the court should instruct 

the jury in accord with this opinion.

REVERSED AND REMANDED.