The Commission held two public hearings in 1972. A number of factors contributed towards keeping this number low compared to the previous two years, when the Commission went to hearing a total of 17 times.
A severe money shortage postponed several hearings which were either conciliated or have yet to be held in 1973. No hearing, however, has ever been canceled due to a shortage of funds.
The large number of hearings in the last two years has given important public notice of the Commission's willingness to go to hearing should the case so demand. It also has brought more public awareness of the law, so that more voluntary compliance has taken place.
In addition, the amount of foot-dragging by respondents seems to have increased. Since the law does not give the Commission a great deal of leverage to force respondents to meet deadlines and answer questions, the whole area of case processing is greatly drawn out, and fewer hearings can be held per year.
Nevertheless, the two hearings that were held were two of the most significant in the Commission's history, the results of which should be of real future consequence to the Commission. The issues are very current, and how they are ultimately decided could engender substantial changes in the Commission's approach to enforcement of the law.
Patterns Of Underutilization Found By Commission
The first public hearing on a Commission initiated charge concerning patterns and practices of underutilization of minorities and women, was held in Cedar Rapids in mid - 1972. The Commission charged that Century Engineering Company had engaged in patterns and practices of exclusion of minorities and women, in violation of the Iowa Civil Rights Act.
Company records indicated that no
blacks and no women had been hired by the company during a 4 year period
prior to the filing of the Commission charge, out of a total workforce somewhere
in excess of 200 employees. Of this fact the hearing examiner stated, Where
statistics show underutilization of minorities., females., or other protected
persons, a prima facie case of a violation of the Iowa Civil Rights Act
Century's recruitment system consisted almost entirely of word- of-mouth applicants and walk-ins, a system which virtually assures that all applicants will be white, when the employer's labor force is all white and when the employer has made no equalizing or supplementary efforts to recruit minorities. This policy perpetuates an all-white workforce and is, therefore, illegal.
Century had hired no females for production or factory work (all females hired were classified clerical) and had failed to hire the one female who did apply for a production job. The Commission felt that it was reasonable to conclude from this that the company was maintaining an unlawful policy of refusing to consider females., as a class'. for production work because of their sex. On this point the hearing examiner commented, saying, "The examiner believes that the Iowa Civil Rights Act places an affirmative duty on employers to recruit persons of both sexes for any position, save for those in which sex is a bona fide occupational qualification, and requires employers, at least, to keep their employment practices from promoting unintentional systemic discrimination on the basis of sex."
Century's maternity leave policy did not conform to guidelines set down by the Commission, and by several federal agencies, in that it required pregnant females to leave their employment two months before the anticipated delivery of the child, and similarly prohibited the women from returning to work until two months after the birth of the child. Such policy adversely affects female employees solely because of their sex, and as such is violative of the Iowa Civil Rights Act.
commission order and remedy
On the basis of the above facts the Commission found "probable cause" to believe that Century Engineering Company had engaged in, and continued to engage in, discriminatory patterns and practices of employment in violation of the Iowa Civil Rights Act.
The Commission then issued an order to Century Engineering Company requiring it to do the following:
1. Cease and desist from any and
all unfair or discriminatory patterns and practices.
2. Develop and maintain continuing
relationships with employment agencies specializing in the referral and
placement of minority persons, and to report periodically to the Commission
as to its success in making these contacts.
3. Direct all employment agencies, public and private, to refer minority persons, men and women, for all job categories.
4. Establish an Affirmative Action
file for minority and female applicants.
5. Develop objective written criteria
for each position in the workforce, validating each requirement, and implementing
6. Cease and desist from use of the current unwritten maternity leave policy. Establish a maternity leave policy in accordance with Commission and federal guidelines in this area.
7. Develop and implement an active
program of in-company training and education in the area of equal employment
8. Report regularly to the Commission on the progress of the above activities.
The issue of the employment, reemployment, and maternity leave of absence rights of pregnant women came out forcefully in the recent case of Linda Heinen versus Johnston Community School District,, which went to public hearing in September 1972.
Mrs. Heinen had charged the
school district with sex discrimination for failing to allow her to teach
(elementary art) the first semester of the 1972 - 1973 school year because
she was pregnant. The board had a written maternity leave policy that required
a pregnant women to resign at the end of the fifth month of pregnancy, with
no guarantee of re-employment. In Mrs. Heinen's case the school board made
an "exception" (while not changing the rule), in that it would
allow her to return to teaching, and her old job, after the baby was born.
However, the board ruled that she could not teach at all during the first
semester of the 1972 - 1973 school year. In addition to barring Mrs. Heinen
from teaching during the first semester, the school board refused to pay
its share of her monthly hospitalization insurance premiums during the time
she would not be working. Mrs. Heinen wanted to work up until two weeks
before the birth of her child and then take the time off to deliver the
baby as a normal sick leave. The school board's refusal to allow her to
do this prompted her to file the charge of sex discrimination with the Commission.
Guidelines issued by the EEOC interpreting the ban on sex discrimination found in the federal civil rights act (the ICRC rule, Chapter 4, is nearly identical and defines the Iowa Law) state in part the following:
"A written or unwritten employment policy or practice which excludes from employment applicants or employees because of pregnancy is in prima facie violation of title VII (of the Civil Rights Act).
"Disabilities caused or contributed to by pregnancy, miscarriage, abortion, childbirth, and recovery therefrom are, for all job-related purposes, temporary disabilities and should be treated as such under any health or temporary disability insurance or sick leave plan available in connection with employment ..."
The school board's policy of requiring
the pregnant woman to take a leave of absence after the fifth month of pregnancy
was held to be a denial of equal protection, for the school had failed to
show a "compelling reason" why the woman should be required to
take the mandatory leave.
Both parties agreed that only women could become pregnant, and therefore any policy directed toward pregnancy applied only to women. Any policy aimed at a particular sex is suspect from the beginning. Therefore, the burden fell upon the school board to prove that its maternity leave policy, although discriminatory in nature, did not violate the Iowa Civil Rights Act.
The school board attempted to justify its polices by arguing the need to provide continuity of education in the classroom, which continuity would be disrupted by the anticipated nine week maternity leave of absence in the fall semester of 1972.
However., the Commission, in its decision, agreed with the hearing examiner that, "...the policy must fall for a lack of showing of a compelling interest. The rights of women affected by the policy outweigh the reason underlying the policy. Where whole classes of persons are circumscribed and adversely affected by law, a compelling need must be present." "The medical evidence adduced at the hearing does not point toward any compelling need to justify terminating complainant's (Heinen) duties for the fall semester. The evidence is clear and convincing as to Complainant's ability to teach during the fall semester. Moreover, inconveniences, or economic considerations do not weigh heavily in the balance, when personal rights are put in jeopardy."
The question of treating pregnancy leaves as normal sick leaves (thus providing for the use of sick leave time and benefits) was considered by the Commission in the following manner: "The necessity for absence during sick leave is sufficiently analogous to the necessity for being absent during maternity leave. Wage indemnification during sick leave constitutes a class preference for sick persons. Pregnant teachers thus have been singled out for unequal treatment although similarly situated, contrary to the equal protection clause and Chapter 105A.7 (now 601A.) of the Iowa Civil Rights Act."
The Commission thus found that illegal discrimination on the basis of sex had been practiced against Linda Heinen and all similarly situated women, and ordered the school board to do the following:
A. Reinstate the original contract with Linda Heinen.
B. Pay Linda Heinen the salary
due her dating from the beginning of the school year to the end of the
C. Grant Linda Heinen the benefits that she would have accrued had the discrimination not occurred.
D. Change its maternity leave policy, so that it will henceforth be treated as a temporary disability, in all respects.
The case is being appealed by the Johnston Board of Education to the district court.
In 19725, four (4) Attorney General's
opinions were handed down on issues relating to the Commission. Those four
(4) opinions are summarized below:
Physically Disabled: Architectural Barriers
Failure to provide physical access for physically disabled persons to places of employment, public accommodations and housing constitutes an illegal and discriminatory act under the Iowa Civil Rights Act. The failure to provide such accessibility effectively serves to discriminate against a substantial number of persons. By hindering this class's freedom of selection of housing, public accommodations and employment, such fundamental rights as the right to work and to participate in the election process are in turn adversely affected.
Each case must be decided on its own facts., measuring the expense and feasibility of providing access to persons of limited mobility. It is immaterial that this discrimination may be unintentional - the effect is the same as if this class was blatantly excluded from certain areas of the public life. Where such discrimination is established,, it is within the power of the Iowa Civil Rights Commission to compel a respondent to provide such physical access as part of a remedy.
Also, the failure of the State of Iowa, or any of its political subdivisions to follow the guidelines of Chapter 104A, Code of Iowa (1973), "Building Entrance for Handicapped Persons", when constructing public facilities with public monies, does constitute a prima facie violation of Chapter (601A) (Iowa Civil Rights Act) and is therefore subject to the enforcement provisions of Chapter (601A.9), Code of Iowa, 1973. (Attorney General's Opinion, May 4, 1972.)
Sick Leave Benefits for Maternity Leave
Disability resulting from the condition of pregnancy and childbirth is covered by the sick leave provisions of the state merit system which allow state employees to take a leave of absence with pay for sickness or injury. Title VII, Civil Rights Act of 1964, was amended in 1972 to extend coverage to employees of all state and local governments, and recent EEOC Guidelines require that disabilities caused by pregnancy and childbirth should be treated as temporary disabilities under any health insurance or sick leave plan. The sick leave provisions of the merit system are within the meaning and intent of the EEOC Guidelines., and as such, must be extended to cover conditions related to pregnancy and childbirth to the same extent as benefits are available for other physical conditions. (Attorney General's Opinion, August 11, 1972.)
Pregnancy Rules of EEOC Applicable to State Employees
Employees of a state board of regents are covered by EEOC guidelines concerning employment policies in regard to pregnancy and childbirth, including maternity leave policies. Title VII., Civil Rights Act of 19641, was amended by the Equal Employment Opportunity Act of 1972 to extend coverage of Title VII to employees of all state and local governments, governmental agencies and political subdivisions. Elected officials and persons appointed by these officials to work on their personal staff are excluded from coverage. (Attorney General's Opinion, May 4, 1972.)
Note - Regents employees are also covered by the Iowa Civil Rights Act, and Chapter 4 of the rules of the Iowa Civil Rights Commission, Rules on Discrimination Because of Sex. Chapter 4 is similar to the EEOC guidelines.
Retroactive Seniority for Sex Discrimination
A female employee of a state agency
was entitled to the full seniority benefits of a position, which she had
been wrongfully denied, dating from the time she should have been given
the promotion. The state employer should not have relied on rules of state
employment, which specified a schedule of pay increases, where the rules
operated to delay the salary increases which the employee would have received
if there had been no illegal discrimination. The employee was eligible for
seniority benefits dating from the time she should have been promoted, in
addition to a prior grant of back pay, in order to fully eradicate the effects
of the bias. (Attorney General's Opinion, No. 72-11-18, November 27, 1972.)
During 1972, the Commission, in
accord with its statutory responsibilities, promulgated two (2) rules and
regulations. (Copies of these rules are available upon request.)
Rules of Practice: Chapter 3
This rule, in accord with section 601A.9(14) of the Iowa Code, spells out in detail the procedures and practices that the Commission will follow in fulfilling its duties under the Act. Such duties include complaint receipt, investigation, public hearing, court appeals, etc. (Filed with the Secretary of State on April 20, 1972, it appears in the Iowa Departmental Rules.)
Rules on Discrimination Because of Sex: Chapter 4
This rule spells out in detail the Commission's interpretation of the Act's prohibition of sex discrimination.
The latter area is one of the most
important and controversial areas in civil rights today. A summary of the
provisions of chapter 4 relating to this area (maternity) is as follows:
leaves of absence: Women shall not be penalized in their conditions of employment because they require time away from work on account of childbearing. If the pregnant woman fulfills the
requirements of the employer for leave policy, childbearing must be considered to be a justification for a leave of absence. The woman must be reinstated to her original job or to a position of like status and pay, without loss of service credits, when she indicates her intent to return to work.
benefits: Disabilities caused or contributed to by pregnancy miscarriage, abortion., childbirth and recovery are to be considered the same as other temporary disabilities, and should be treated as such under any health or temporary insurance or sick leave plan available in connection with employment. The periods set for leaves of absence for temporary disability must be applied to disability due to pregnancy or childbirth. The accrual of seniority and other benefits and privileges, reinstatement, and payments under any health or temporary disability insurance or sick leave plan allowed to persons temporarily disabled, must also be applied to pregnancy.
The Commission is empowered under
the statute to initiate charges on its own. In reporting year 1972 the Commission
initiated 17 complaints - 16 in employment and 1 in housing. The willingness
of the Commission to initiate charges reflects its awareness of the wide
scope of discrimination and the growing need for positive action to seek
out and eliminate that discrimination. The power to initiate charges allows
the Commission to take prompt action where it finds discrimination.
Occasionally an incident of discrimination comes to the attention of the Commission, however, for various reasons the aggrieved party does not file an individual complaint. Fear of reprisal, such as loss of job, may be the reason for not filing, although reprisals for filing complaints are specifically prohibited by the law. Therefore, the Commission initiates its own charge to begin the investigation.
Patterns and Practices
The Commission has initiated charges related to underutilization of minorities and women, where no specific individual is involved, based upon statistics, comparison with other similarly situated industries, and relevant community knowledge of the establishment.
systemic discrimination: This discrimination does not manifest itself in the form of specific acts against specific individuals, but it rather is built into the system (often unintentionally) and is usually of a continuing nature. This means that some factor or factors built into the system (tests, educational requirements, etc.) tend to have the effect of excluding higher percentages of certain classes of people, while having no demonstrable validity for performance of the job in question. Thus, a higher percentage of persons who are members of classes protected by the Iowa Civil Rights Act are adversely affected by certain employment practices. The affected person may not, however, be aware of the fact that he/she was discriminated against, because that person may have accepted the reasons for his/her exclusion as valid, when in fact they were not.
authority for pattern & practice: Some respondents have questioned the Commission's legal authority to initiate these so-called "pattern and practices" complaints. However, in light of the
1971 Iowa Supreme Court ruling in the case Ironworkers Local 67 vs. John Hart., there can be little question of the Commission's clear authority-to do so. In that decision the court noted that
respondent had made an erroneous assumption when it said that the legislation involved (Iowa Civil Rights Act) must be interpreted as affording merely a remedy in a specific dispute rather
than correcting a broader pattern of behavior. The court noted that., "It is the latter GOAL TOWARDS WHICH THIS LEGISLATION IS DIRECTED." (emphasis added). "It was", the court explained, " the practice of discrimination, not merely the humiliating treatment of Roe, at which the Commission and trial court took aim..."
statistics: The court also noted that the use of statistics by the Commission was entirely proper when it said, "In racial discrimination cases, statistics often demonstrate more than the testimony of many witnesses, and should be given proper effect by the courts."
other discrimination uncovered: Some have also questioned the Commission's authority to deal with discriminatory situations and systems that are uncovered in the course of an investigation of a charge which does not specifically mention those illegal practices. The Commission is busy enough that it certainly does not need to look for more work. Nevertheless, as an agency charged under law with the specific duties of seeking out and eliminating discrimination, and an agency bound by relevant court decisions in the field., the Commission really has no choice in the matter. Several federal court decisions have mandated that an enforcement agency, such as the Iowa Civil Rights Commission, must, where it finds discrimination, attempt to eliminate not only that which was listed as the original reason for the investigation, but also any other that is uncovered. To do any less than this would be to violate the mandates which the law imposes on the Commission, and subject it to penalties for dereliction of duty.
The Commission, therefore, feels that many who cast stones at it for overstepping its bounds, should do their homework a bit more thoroughly, wherein they might discover that the Commission actually has little latitude in such matters.