The Iowa Civil Rights Commission is one government office that would like to work itself out of business.Unlike offices where people file for a drivers license or a Homesteaders Exemption, we hope the people we see will never need our help again. There is nothing about the physical appearance of our office that would necessarily indicate that. We have the usual array of desks, machines and files. But amid the hardware there is a process occurring. The compliance Division is that section of our organization which receives complaints, investigates them and hopefully remedies them. One cannot really see the process by which this occurs because it is in the minds of the people who work there, people who are using the time of their lives to change the way other citizens are treated.
One of those people is Michael Bailey. His job is to manage the Compliance Division which consists of three complaint intake persons, six investigators, three conciliators and two supervisors other than himself. Mike is from Wichita, Kansas. He is a 1970 graduate of Kansas Newman College where he majored in both sociology and psychology. After first working in the Neighborhood Youth Corp in Wichita, he joined the staff of the Kansas Commission on Civil Rights. During the year and a half he was with the Kansas Commission, he worked as an investigator, first, on individual complaints, then on companywide complaints and as a conciliator. Mike came to our staff as Compliance Director in March, 1974.
The Iowa Civil Rights Act of 1965 prohibits discrimination in the areas of employment, housing, public accommodations and credit. The types of discrimination barred are those based on age, sex, race, creed, color, religion, national origin, physical disability, mental disability and marital status. Coverage for these bases varies. Discrimination because of marital status is illegal only in the area of credit, while discrimination because of mental disability is not illegal only in the area of credit. Age discrimination is not illegal in the areas of housing and public accommodations.
Getting first an overview of the process may help to explain. We can put meat on this skeleton in a moment. The complaint process has three possible stages: investigation, conciliation and public hearing. In the investigative stage we are strictly impartial factfinders. After we have gathered the facts, a commissioner makes a determination as to whether or not there was discrimination. A finding of discrimination would lead to the conciliation stage. In conciliation we are not neutral, rather we take on the cloak of an advocate, because we have determined that the complainant was a victim of illegal discrimination. This is the stage in which we attempt to obtain a negotiated settlement. If the conciliator is unable to do this, the commission has the option to take the case to public hearing. Based on the transcript of the hearing and the rationale of a separate hearing officer, the commission makes the final order. When an order is issued, we can enforce it in the district court.
The flesh of the investigative stage begins with the complaint intake. Anybody can call or write directly to our office or come in person to file a complaint. Or they could contact a local human tights commission and triple file, that is, with the local, state and federal agencies. Alternatively someone may file directly with a federal agency, such as the U.S. Equal Employment Opportunity Commission (EEOC). In that event the Iowa commission would have primary jurisdiction for the first sixty days in most cases. Then too, the Iowa Civil Rights Commission itself has the power to initiate a complaint.
Once the investigation has begun, a number of different types of findings could ensue. Not all complaints result in a completed investigation. Specifically there are four which do not. A finding of "no jurisdiction" would usually happen earliest in the process. In fact, a review of the complaint to determine jurisdiction is the first step we take with every complaint. A complaint based on homosexuality, for example, we would want to weed out early since there is nothing we could do with it by law anyway. A complainant herself/himself can "withdraw" a complaint at any time in the process. Another finding that would short-circuit a completed investigation is an "administrative closure." The death of a complainant or inability to locate a complainant are sample reasons why we might close a case administratively. In FY-77 and FY-78 there were some instances when we would close a case administratively even after a completed investigation. These instances arose after an inability to conciliate a probable cause case, if the commission did not choose to take that case to public hearing. The last type of finding that would interrupt the completion of an investigation is a "satisfactory adjustment." A "satisfactory adjustment" results when the problem involved in the complaint has been resolved prior to a completed investigation. For example, an employer may have suspended an employee as a disciplinary measure, but through the union grievance procedure the employee recovers the lost wages prior to a finding on the part of the commission. In many other cases the employer simply decides to make whatever adjustments that are needed to resolve the matter prior to a finding on our part. Usually these adjustments are committed to a formal written agreement.
There are two other types of findings which come only as a result of a completed investigation. A finding of "no probable cause" is a finding adverse to the complainant. It says that there was no evidence to indicate the complainant's allegations were true. We would close out this case although the person could appeal our decision through the district court. A finding of "probable cause" would propel the case into the second stage of the process, conciliation.
If conciliation is successful, it will culminate in the signing of a written conciliation agreement. That agreement would embody whatever remedies would be necessary to "make the person whole." That is, we return to the person or secure for the person all the rights and benefits they would have had but for the discrimination. In addition we would require the respondent to take affirmative action measures and make corrections in his/her system of operating to prevent any future infringement of rights.
Where the negotiators are at loggerheads or where the respondent refuses conciliation, the commission may take the case to public hearing. There was a revision in the law during FY-78 which will allow the Executive Director to bypass conciliation in grevious cases or where he/she deems appropriate. The legislative section of this report will elaborate further on other revisions.
The nature and operation of our public hearings closely resembles those of a court of law. A hearing officer presides much like a judge would preside. Tables of opposing attorneys face each other. Witnesses are sworn in and a court reporter busily takes down each word. Unlike a trial, procedures permit hearsay testimony, i.e., secondhand information. Once the commission issues its final order, we are out of the administrative and into the judicial realm.
A. Complaint Intake
1. Filed directly
2. Deferral from local or federal agency
3. Commission initiated
B. Investigatory Determination
1. No Probable Cause Finding (Case closed)
2. Other Closings
a. No jurisdiction
c. Administratively closed
d. Satisfactorily adjusted
3. Probable Cause Finding
A. Conciliation Process
1. Successful Conciliation (Agreement signed: Case closed)
2. Unsuccessful Conciliation (No agreement)
A. Public Hearing
1. No Discrimination (Case closed)
a. Cease and desist
b. Affirmative action
i. Compliance (Case closed)
ii. Refusal to Comply (Court Review)
aa. Court Confirmation (Case closed)
bb. Appeal to Higher Court
In compiling this report we generated a considerable amount of statistical data. For those readers who would like to know in detail how the information breaks out, we have included all of the numerical tables in the appendix. For example, a reader may be interested in how many cases were filed on the basis of race in the area of housing due to a failure to rent in FY-78. Please feel welcome to analyze all of the information, if you wish. Our purpose in the narrative is to highlight some of the trends and more salient points evidenced by the numerical breakdown.
In FY-77 the Iowa Civil Rights Commission received a signed, notarized complaint every 2 hours and 48 minutes. Of the total 736 complaints filed, 90% of them were in the area of employment. This trend is consistent with other years including FY-78 in which 92% of the complaints filed were in the area of employment. Almost half of those complaints (43%) in FY-77 were triggered by a discharge. FY-78 saw the same pattern. 45% of the employment cases filed last fiscal year were also discharge cases.
The two most frequent bases for filing a complaint for both years were race and sex, which is also consistent with past years. In FY-77 there were slightly more sex complaints than race: 254 (35%) based on sex and 249 (34%) based on race. The reverse occurred in FY-78: 230 (33%) based on sex and 234 (33%) based on race. For both years physical disability was the third most frequent basis and age was the fourth. Since 1972 when physical disability and age were added to the law, this has been the pattern.
In FY-77 the Iowa Civil Rights Commission closed a complaint every 2 hours and 36 minutes. The total number of closures was 809 which was 73 more cases than we received for the same period. So we reduced our case inventory to that extent. Not surprisingly, 89% of the cases closed for that fiscal year were in the area of employment. The bases of the closed cases followed the same profile as that of cases received. Sex and race were the two most frequent: 270 closed on the basis of sex or 33% and 267 closed on the basis of race or 33%. Some of those outcomes remained the same for FY-78. Again 91% of the closures were employment cases. The leading bases were also sex and race last fiscal year: 249 closed on the basis of sex or 37% and 212 closed on the basis of race or 32%. There were, however, fewer closures altogether.
If you compare, you will see that there were 675 case closures in FY-78. That is 134 closures fewer than the year before. There were two reasons for this dip: staff turnover (both paid and volunteer) and a change in emphasis from investigations to conciliations. The largest number of paid investigators we had working simultaneously during FY-78 was six. All six were employed during the first three months of the fiscal year. Seventeen (17) investigators left the agency during FY-78. Ten (10) of them had been producing cases the previous year. Twelve (12) of the seventeen (17) were Volunteers in Service to America (V.I.S.T.A.) whose tour of duty had expired. The other five (5) were paid staff. These departures dealt a real blow to the output we were able to achieve.
A different kind of departure affected production also. Three (3) of our professional investigators were promoted to conciliators so as to meet the pressing demand a that stage of the process. This re-allocation of resource effectively meant the "departure" of three (3) more investigators, at least, from the investigative stage of the process. So looking at both reasons for the dip in production, the agency lost a total of twenty (20) investigators during FY-78. This contrasts sharply wit FY-77 when we closed 134 more cases, since we only lost one investigator during that year. All tolled there were only two (2) paid professionals who were with us at the start of FY-78 and who remained as investigators throughout that year.
The Iowa commission was one of the first state civil rights commissions in the nation to implement a specific minimum performance standard for investigators. Ours is a unit system in which a "unit" is not necessarily equal to a completed investigation. Supervisors require that each investigator obtain 7 units per month. The unit value of work performed is listed below:
Withdrawals 1/4 unit
No Jurisdiction 1/4 unit
Administrative Closure 1/4 unit
Satisfactory Adjustment 1/2 to 1 unit (depending on the amount of work involved)
Review of an investigation of a local commission 1/2 to 1 unit (depending on the amount of work involved)
Probable Cause 1 unit
No Probable Cause 1 unit
We want as many people as possible working full time toward completed investigations. Division of labor is important for that purpose. As much as possible, the Specialists (investigators) channel withdrawals, no jurisdictions and administrative closures to the Assistants. This frees investigators to spend the lion's share of their time on completed investigations.
There is a certain amount of flexibility built into the system whereby adjustments are made depending on the complexity of the case and other assignments the investigator might have. However, without these considerations the supervisor will apply progressive disciplinary measures in the event an investigator is not making his/her unit requirements. Ultimately such measures could result in termination.
Due to establishment of the unit system, investigators at the Iowa commission have a minimum per capita output of 7 units per month. Ours is the highest performance standard of any state civil fights commission in the five state region of Iowa, Illinois, Kansas, Missouri and Nebraska. Further, it is among the highest in the nation. In fact, many civil tights enforcement agencies in the country have yet to establish performance standards.
The unit system by no means fosters a paper mill of findings without regard for the quality of the work. Quality control is built in through supervision. The supervisor closely reviews all cases before sending a recommended finding to the assigned commissioner. [We would not have experienced the increase in cases being conciliated and going on to public hearing and litigation without quality investigations.]
In FY-78 we had 19 cases go to public hearing. That figure amounts to more public hearings than we held in the previous 10 years.
We have examined several breakdowns for cases closed: the total number in FY-77 and FY-78, their areas of jurisdiction and what they were based on (age, sex, national origin, etc.) But what types of findings are designated for these closures? Appendices V and VI graphically display the answer. The distinction between cases closed and cases processed is probable cause findings. The "bottom line" of the process is certainly the final disposition of a case. But in terms of gauging the total work of the agency, one must consider all cases processed. Any two given cases, one a probable cause and one a no probable cause, require the same amount of work. Both are completed investigations, whereas the others (except for successful conciliation) are not.
The largest single category of the findings for both FY-77 and FY-78 is no probable cause. The size of that wedge in the pie is consistent with the break w findings for other state civil rights enforcement agencies across the nation. The three categories that counterbalance this are the shaded areas of the pie. In other words, the shaded areas represent outcomes that are favorable to the complainant. Draw your attention to the chart for "cases processed." A comparison of the size of the shaded areas to the area designated no probable cause shows a change between FY-77 and FY-78. In FY-77 no probable cause findings amounted to 35% of the pie, while the shaded area consumed 23%, a difference of 12%. That gap almost closed in FY-78. The no probable cause findings were 36%, while the findings favorable to the complainant were 35%.
STATUS OF THE CASE INVENTORY
The "backlog" or case inventory has been the subject of much discussion stemming from the Civil Rights Commission. Case inventory refers to that group of cases which have been filed, but have not yet reached final disposition. Too often these discussions leave the public and those concerned about discrimination with the impression that the case inventory is a stockpile of cases that are just sitting there. Quite the contrary, the case inventory is moving. In any given period of time, some cases are moving to final disposition, others are just coming into the agency. When we cite the size of the case inventory, it is a snapshot view. At that point in time we can give a number. At a different point in time, the number might even be the same, but not necessarily the same cases and for the most part not at the same stage of the process as they were before. The important factor is not the number of cases in the inventory, but the rate of turnover.
At the start of FY-77 the inventory was 942 cases. By the end of FY-78 we had lowered that to 901 cases. It reached its lowest ebb at the close of FY-77 when it was at 869. The Iowa commission has existed since 1965. The experience of the agency teaches that the sooner we investigate a charge, the sooner we will resolve it. At the same time we feel a compelling obligation to those people who have waited the longest. Therefore, the management policy has been to assign cases from both ends of the inventory. Half the assignments are the oldest cases and half are the newest cases. Then we work toward the middle.
The graph depicts the movement of cases by way of the arrows and the shading. Through the year we have "x" number of cases on hand. In FY-77 we saw a total of 1678 cases: case inventory at start + cases received. In FY-78 the total was 1576 cases. Each complete circle represents the total for the respective year. We are working both ends of the total, i.e., both old cases and new (arrows). Some are closed out and some are carried over to the next year. The shading illustrates that portion of each circle which is the same group of cases. Although carried over, they too are moving.
Lack of professional paid staff has been the single most important factor contributing to the case inventory internally. Prior to 1970 our case inventory did not carry over into another year. In 1970 the legislature added sex discrimination to the coverage of our law. They did not allocate a corresponding increase in staff. Case turnover began to slow down considerably. Then in 1972 the legislature added physical disability, mental disability and age discrimination to the coverage of the law, again without a corresponding increase in staff to handle the bulging intake. We are certainly grateful for the increases in staff and budget we have received through the years. With those additional resources we were able to speed the turnover of cases considerably. But if there is to be any further appreciable change in that rate of case turnover, more paid professional staff with clerical support is essential.
VOLUNTEERS IN SERVICE TO AMERCIA (V.I.S.T.A.)
Byron Wilson (Iowa City, Iowa)
Steve Hobson (Kansas City, Mo.)
Norm Wangberg (Winterset, Iowa)
Gil Sperling (Long Island, N.Y.)
Chuck Tierney (Rochester, N.Y.)
Diann Rust (Washington, D.C.)
V.I.S.T.A. Volunteers not pictured: Tim O'Brien (Livonia, Michigan), Ruth Owens (New Rochelle, New York), Debbie Sorensen (West Allis, Wisconsin), Don Bohiken (Monticello, Iowa), Jon Bormet (Bloomington, Indiana), Colleen Convey (Des Moines), Sue Alberts (Long Island, New York), Dave Mitchell (Fuliton, Missouri), and Dawn Peterson (Algona, Iowa).
VISTA is a part of ACTION, the federal volunteer agency. Mr. Joel Weinstein made the overture to enlist volunteers in the staff of the Iowa Civil Rights Commission early in 1976. The program began in August of that year. It was the first VISTA project in a state civil rights enforcement agency. The mounting number of cases at the commission was the problem it was designed to solve. Volunteers were to work as much as possible on the oldest cases in the agency.
The project existed from August, 1976 until June, 1978, a total of twenty two (22) months. During that period we worked with a total of fifteen (15) volunteers, although there were never that many at any one time. All had college degrees and worked at the level of a Civil Rights Specialist 11 (second level investigator).
During the entire twenty-two month period we were able to close 542 cases with the help of the VISTA's. 330 of those were completed investigations (probable cause or no probable cause). 40 more were satisfactory adjustments.
We are grateful to ACTION and the fifteen persons who worked with us. Had it not been for them, 542 people in Iowa would have waited longer for their complaints to be closed. Nevertheless, the program was experimental. We learned that the community organization and poverty related goals of VISTA were not compatible with the goals of our compliance program.
There was one project on which three of the last four VISTA's worked which was more akin to their VISTA goals. That was a study of discrimination in the rental and sale of housing units in Council Bluffs, Iowa. Their help was invaluable.
The term "remedy" refers to the tights and benefits to which the complainant is entitled, if he/she has been the victim of illegal discrimination. The benefits are often, but not always, monetary in nature. Many are important to the persons involved but difficult to attach to a dollar figure. Turn to appendices VII and VIII for the tables showing all the remedies we obtained for people in FY-77 and FY-78 respectively. "Back pay" refers to the amount of money a complainant would have earned from the date of the discriminatory incident until the date the case was resolved. This is, of course, limited to employment cases. "Settlement" might encompass several things. For example, in a housing case the complainant might have incurred certain outofpocket expenses for which they are entitled to reimbursement. In some instances, the commission and the respondent might negotiate within a reasonable range on a lump sum figure that would be acceptable to both in order to resolve the case. Back pay might be a factor affecting their range of negotiation, but there may be a variety of other factors also depending on the case. In cases in which the complainant gets hired, rehired, promoted or in any way secures a right to money in the future, we compute for our own records a figure we call "annualized benefits." This figure is what the dollar value of the new wage will be from the date it begins until one year later. One year is a standard period for all such figures we compute. The "dollar total" column is a summary column. In other words, for each row, the dollar entries when added should equal the "dollar total" for each row. Likewise is true for column totals at the end of the table. In FY-77 there were 113 cases in which we obtained a remedy and in FY-78 there were 146. Column totals appear as follows:
The tables at appendices VII and VIII show the variety of the type and size of remedies we have obtained monetary and nonmonetary, large as well as small. Terms of the remedies vary. In FY-77 the largest single monetary settlement we obtained was $12,000 and the largest annualized dollar amount that accrued to a complainant was $16,348. In FY-78 these amounts were $9,800 and $20,384 respectively.
The dollar value of settlements in FY-77 and FY-78 is lower than the same figures for FY-76. That year total remedies amounted to $586,315. We see primarily two reasons for this difference. First, in FY-76 the Iowa Supreme Court decision on pregnancy benefits - Parr, McCarthy et al vs. Cedar Rapids Community School District - began to have full impact on the state. Through that year many cases were settled in which the employer had requested a delay in anticipation of that decision. All of them were revenue producing for the complainant. Neither of the later two years had a similar influence. Second, we accelerated the rate of turnover for cases in the latter two years. The faster we can investigate and resolve a case, the less it will cost the respondent. The less time a case spends in processing, the less the back pay accumulates.
One development evidenced by the tables that has been occurring over the past three years is the increase in satisfactory adjustments. You might recall that a satisfactory adjustment is a resolution that occurs prior to a completed investigation. Respondents are becoming more educated on equal opportunity law. They seem to better recognize when a violation has taken place once a complaint is filed. However, the written agreements that accompany a satisfactory adjustment usually allow the respondent to stipulate that there has been no violation. The fact is that a larger number of respondents are settling early in the process. In addition to respondents gaining a better knowledge of the law, we believe that our intensified efforts at the public heating and litigation stages have been a strong contributing factor to this development. Enforcement of the law engenders greater respect for it. We will take a closer look at public heating and court action in the next section.