VI. Sexual Harassment:
A. Sexual Harassment Theories: Quid Pro Quo and Hostile Environment:
13. It is well recognized that sexual harassment cases are often classified as arising under either the quid pro quo or hostile working environment theories. E.g. Fair Employment Practices (BNA) 405:6681 "EEOC: Policy Guidance on Sexual Harassment" (March 19, 1990); Lindemann & Kadue, Sexual Harassment in Employment Law 7 (1992). It is, nonetheless, possible to have cases where both theories may be appropriate. E.g. Fair Employment Practices (BNA) at 405:6682; Lindemann & Kadue, Sexual Harassment in Employment Law at 8-9. In the quid pro quo case, a violation occurs when the employee is required to acquiesce to the sexual advances of his or her employer in order to obtain a job benefit, such as promotion, or avoid an employment detriment, such as discharge. See Fair Employment Practices (BNA) at 405:6681; Lindemann & Kadue, Sexual Harassment in Employment Law at 7, 8. The present case arises under the hostile environment theory. In the hostile environment case, a violation occurs when unwelcome conduct by the employer or coworkers, which is directed at the employee because of his or her sex, has the "purpose or effect of unreasonably interfering with an individuals's work performance or creating an intimidating, hostile, or offensive working environment." EEOC Guidelines on Sexual Harassment, 29 C.F.R. S 1604.11(a), quoted in Meritor Savings Bank v. Vinson, 477 U.S. 57, 66-67 (1986). See Lynch v. City of Des Moines, 454 N.W.2d 827, 834-35 (Iowa 1990).
B. Proper Order and Allocation of Proof Under the Hostile Environment Theory:
14. "It is questionable whether the traditional burden-shifting analysis is appropriate or necessary in hostile work environment cases where the alleged discrimination does not involve deprivation of a tangible job benefit." Lynch v. City of Des Moines, 454 N.W.2d 827, 834 n.6 (Iowa 1990)(citing Henson v. City of Dundee, 682 F.2d at 905 n.11 and Katz v. Dole, 709 F.2d at 255-56)). This is so because the burden shifting analysis, utilized in disparate treatment cases relying primarily on circumstantial evidence as the means of proof, "serves to 'progressively sharpen the inquiry into the elusive factual question of intentional discrimination,' . . . in . . . case[s] where prohibited criteria and legitimate job related criteria often blend in the employment decision." Henson v. City of Dundee, 682 F.2d at 905 n.11. See Conclusion of Law No. 48. In cases of sexual harassment involving the repeated use of sexual remarks or epithets, verbal, or physical sexual advances, or other obviously sexual conduct, the factual question of intentional discrimination is not at all elusive. See Henson v. City of Dundee, 682 F.2d at 905 n.11 (sexual harassment creating offensive environment does not present elusive factual question of intentional discrimination). Therefore, the Commission, in its adjudicative capacity, has not used a burden shifting order and allocation of proof in harassment cases. Rather, the Commission, as the party with the burden of proof, Iowa Code S 216.15(7), is required to prove, by a preponderance of the evidence, all of the elements of a sexual harassment case. E.g. Dorothy A. Abbas, 12 Iowa Civil Rights Commission Case Reports 1, 22 (1994)(retaliatory harassment); Cristen Harms, 11 Iowa Civil Rights Commission Case Reports, 89, 124 (1992)(sexual harassment).
C. Elements of the Sexual Harassment Case:
15. The Commission may establish a valid claim of sexual harassment by proving the following elements:
1) The Complainant is a member of a protected class [i.e. she is a female];
2) She was subjected to unwelcome sexual harassment;
3) The harassment was based upon her protected class status [i.e. her sex];.
4) The harassment affected a term, condition, or privilege of employment [e.g. her working environment], and;
5) The employer knew or should have known of the harassment and failed to take prompt and appropriate remedial action.
See Greenland v. Fairtron Corp., 500 N.W.2d 36, 38 (Iowa 1993)(requirements for sex harassment case); Vaughn v. Ag Processing, Inc., 459 N.W.2d 627, 632 (Iowa 1990) (religious harassment); Lynch v. City of Des Moines, 454 N.W.2d 827, 833, 834 (Iowa 1990)(requirements for sexual harassment case); Chauffeurs, Teamsters and Helpers, Local Union No. 238 v. Iowa Civil Rights Commission, 394 N.W.2d 375, 378 (Iowa 1986)(racial harassment); Edmunds v. Mercy Hospital, 503 N.W.2d 877, 879 (Iowa Ct. App.1993)(sex harassment); Henson v. City of Dundee, 682 F.2d 897, 903-05 (11th Cir. 1982)(sex harassment).
D. Protected Class Status of Complainant Hoffman:
16. It is established in the record that Ms. Debra Hoffman is a female and is protected against discrimination in employment on the basis of sex. Iowa Code S 216.6. See Finding of Fact No. 12.
E. Complainant Hoffman was Subjected to Unwelcome Sexual Harassment:
17. "The threshold for determining that [sexual] conduct is unwelcome is whether it was uninvited and offensive." Burns v. McGregor Electronic Industries, Inc., 989 F.2d 959, 962 (8th Cir. 1993). The sexual conduct "must be unwelcome in the sense that the employee did not solicit or incite it, and in the sense that the employee regarded it as undesirable or offensive." Henson v. City of Dundee, 682 F.2d 897, 903 (11th Cir. 1982), quoted in Lynch v. City of Des Moines, 454 N.W.2d 827, 834 (Iowa 1990). The unwelcome nature of the sexual conduct directed toward Complainant Hoffman is established in the record when viewed as a whole. She found the sexual conduct of Respondent Joel Lopez and other kitchen staff employees to be offensive, objected to it, and complained about it to Robert Novak, David Lihs, Joe Lacona, Jim Lacona, and Charles Lacona. See Findings of Fact No. 13-25, 31-32, 36-39. Although the record must be viewed as a whole, such complaints are often persuasive evidence that the conduct was unwelcome. Fair Employment Practices (BNA) 405:6681, 405:6685 "EEOC: Policy Guidance on Sexual Harassment" (March 19, 1990). See Lynch v. City of Des Moines, 454 N.W.2d 827, 834 (Iowa 1990).
F. The Harassment Was Based on Complainant Hoffman's Protected Class Status, I.e. Her Sex:
18. It is established in the record that the harassment sustained by Ms. Hoffman was directed toward her because she a female. See Finding of Fact No. __. This element may be met by proof of either:
[1] [H]arassing behavior lacking a sexually explicit content but directed at women and motivated by animus against women (citations omitted). . . [or];
[2] [S]exual behavior directed at women . . . E.g. Huddleston v. Roger Dean Chevrolet, Inc. 845 F.2d 900, 904-05 (11th Cir. 1988); Sparks v. Pilot Freight Carriers, Inc., 830 F.2d 1554, 1561 (11th Cir. 1987); see Andrews [v. City of Philadelphia], 895 F.2d at 1485; Lipsett [v. University of Puerto Rico], 864 F.2d at 905; Bennett v. Corroon & Black Corp., 845 F.2d 104, 106 (5th Cir. 1988), cert. denied, 489 U.S. 1020 . . . (1989). [or];
[3] [B]ehavior that is not directed at a particular individual or group of individuals, but is disproportionately more offensive or demeaning to one sex. (Citations omitted). This third category describes behavior that creates a barrier to the progress of women in the workplace because it creates a message that they do not belong, that they are welcome in the workplace only if they will subvert their identities to the sexual stereotypes prevalent in that environment.(citations omitted).
Robinson v. Jacksonville Shipyards, Inc., 760 F. Supp. 1486, 1522-23, 55 Empl. Prac. Dec. S 40535 at 65759 (M.D. Fla. 1991). A similar scheme of three categories of sexually harassing behavior, albeit in a different order, is set forth in the leading legal treatise on sexual harassment in employment: "(A) unwelcome sexual advances, (B) gender-based animosity of either a sexual or a nonsexual nature, and (C) a sexually charged workplace." Lindemann & Kadue, Sexual Harassment in Employment Law 52 (1992).
19. In this case, it has been established that the harassment was based on Complainant Hoffman's sex because the harassment involves both repeated physical and verbal sexual behavior directed at women. The crude language used for the verbal sexual advances and comments by the harassers in this case may also reflect that the harassment is sex based for the same reason such language reflects a sexual basis in the gender animosity cases. These words, when directed at women,"deriv[e] their power to wound not only from their meaning but also from the 'disgust and violence they express phonetically.'" Id. at 75 & n.103 (quoting Katz v. Dole, 709 F.2d 251, 254 (4th Cir. 1983)). The use of the word "bitch" toward a woman may be part of a pattern of obscene statements or name calling which constitute harassment based on sex. Burns v. McGregor Electronic Industries, Inc., 989 F.2d 959, 964-66 (8th Cir. 1993). The presence of "insulting comments aimed at [the complainant] [which] were particularly reserved for women," also justifies the conclusion that the harassment was due to the Complainant's sex. Lynch v. City of Des Moines, 454 N.W.2d 827, 834 (Iowa 1990). See Findings of Fact Nos. 14-18.
G. The Harassment Affected A Term or Condition of Complainant Hoffman's Employment, I.e. Her Working Environment:
1. Loss of Tangible Job Benefits Is Not Required To Establish That Harassment Has Affected A Term, Condition or Privilege of Employment:
20. Although sexual harassment of Complainant Hoffman did not directly result in "the loss of a tangible job benefit," such a loss need not be proved in order to meet the requirement that a term, condition or privilege of employment was affected by the harassment. Lynch v. City of Des Moines, 454 N.W.2d 827, 834 (Iowa 1990). Her working environment is a condition of her employment. Thus, the creation of a hostile or abusive working environment is enough to show that a condition of employment has been affected. See id.
2. The Standard for Determining When Harassment In the Workplace Violates the Iowa Civil Rights Act Focuses on the Pervasiveness and Severity of the Harassing Conduct:
21. In determining whether a hostile or abusive working environment has been created, the Supreme Court of Iowa has focused on the pervasiveness and severity of the harassing conduct. "A hostile working environment is caused by discriminatory conduct or harassment which has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile or offensive working environment." Vaughn v. Ag Processing, Inc., 459 N.W.2d 627, 632 (Iowa 1990). "Where sexual harassment in the workplace is so pervasive and severe that it creates a hostile or abusive work environment, so that the [complainant] must endure an unreasonably offensive environment or quit working, the sexual harassment affects a condition of employment." Lynch v. City of Des Moines, 454 N.W.2d 827, 834 (Iowa 1990).
22. The Supreme Court of the United States has provided a standard which also focuses on the pervasiveness and severity of the harassment in determining whether there is an illegal hostile working environment: "When the workplace is permeated with 'discriminatory intimidation, ridicule, and insult' . . . that is 'sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment' . . . Title VII is violated. " Harris v. Forklift Systems, Inc., ___ U.S. ___, 114 S.Ct. 367, 370 (1993).
3. The Totality of the Circumstances Must Be Examined to Determine Whether a Hostile or Abusive Working Environment Exists:
23. Under both the Iowa Civil Rights Act and Title VII of the Civil Rights Act of 1964, the totality of the circumstances in the case must be examined to determine whether a sexually hostile or abusive working environment exists.
The existence of a hostile or abusive working environment must be established by the totality of the circumstances. . . . Whether . . . use of [sexual] slurs is continuous, severe and pervasive enough to rise to a violation of the Iowa Civil Rights Act is a question of fact. . . .
It is well established that the "mere utterance of a [sexual], ethnic or racial epithet which engenders offensive feelings in an employee" does not affect the terms, conditions and privileges of employment to a significant degree. . . . Discriminatory comments that are "merely part of casual conversation, are accidental or are sporadic do not trigger . . . sanctions." . . .
On the other hand, the determination of whether defendant's conduct is sufficiently severe and pervasive to constitute [sexual] harassment does not turn solely on the number of incidents alleged by plaintiff. . . . The totality of the circumstances requires the factfinder to examine the severity, as well as the number, of the incidents of harassment. . . . In some situations the severity of the offensive conduct may lessen the need for sustained exposure. The prima facie showing in a hostile environment case is likely to consist of evidence of many or very few acts or statements by the defendant which, taken together, constitute harassment.
Vaughn v. Ag Processing, Inc., 459 N.W.2d 627, 633-34 (Iowa 1990)(Iowa Civil Rights Act case)(citations omitted)(emphasis added).
But we can say that whether an environment is "hostile" or "abusive" can be determined only by looking at all the circumstances. These may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating; or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.
Harris v. Forklift Systems, Inc., ___ U.S. ___, 114 S.Ct. 367, 371 (1993).
24. All of the above factors were considered in reaching the conclusion that Complainant Hoffman's working environment was hostile or abusive. See Findings of Fact Nos. 28-34. With respect to the factor of interference with work performance, it is sufficient to prove that a reasonable person subjected to such harassment would find, "as the plaintiff did, that the harassment so altered work conditions as to 'ma[k]e it more difficult to do the job.'" Harris v. Forklift Systems, Inc., 114 S.Ct. at 372 (Ginsburg, J., concurring)(quoting Davis v. Monsanto Chemical Co., 858 F.2d 345, 349 (6th Cir. 1988)). It is not necessary to show that the Complainant's "'tangible productivity has declined as a result of the harassment.'" Id. (Ginsburg, J. concurring)(quoting Davis at 349)).
25. Other factors indicating the severity and pervasiveness of the sexual harassment reflected in the record include: (a) the harassment was inflicted by more than one coworker, and (b) the harassment was also suffered by other female food servers. Lindemann & Kadue, Sexual Harassment in Employment Law 178-79 (1992). See Findings of Fact Nos. 15, 19-23, 25, 29-31, 33-34.
4. Physical Harassment May Often Have A More Severe Impact Than Verbal Harassment:
26. Physical sexual harassment will often have a greater impact than verbal harassment. The Equal Employment Opportunity Commission has recognized that, while a hostile working environment claim usually requires a pattern of offensive conduct, "the more severe the harassment, the less need to show a repetitive series of incidents. This is particularly true when the harassment is physical." Fair Employment Practices (BNA) 405:6681, 405:6690-91 "EEOC: Policy Guidance on Sexual Harassment" (March 19, 1990)(emphasis added). See also Carrero v. New York City Housing Authority, 890 F.2d 569, 578 (2nd Cir. 1989). "More so than in the case of verbal advances or remarks, a single unwelcome physical advance can seriously poison the victim's working environment." "EEOC Policy Guidance on Sexual Harassment" at 405:6691. Under these standards, the physical harassment experienced by Complainant Hoffman would, alone, be sufficient to establish a hostile and abusive work environment. See Findings of Facts Nos. 19-24, 30.
5. Pervasive Verbal Harassment Alone May Be Sufficient to Establish a Hostile or Abusive Working Environment:
27. Nonetheless, verbal harassment can also create a hostile and abusive working environment:
[T]he pervasive use of derogatory and insulting terms relating to women generally and addressed to female employees personally may serve as evidence of a hostile environment. See Katz v. Dole, 709 F.2d 251, 254 (4th Cir. 1983); Hall [v. Gus Constr. Co.], 842 F.2d at 1012-15 [(8th Cir. 1988)]; Lipsett v. University of Puerto Rico, 864 F.2d 881, 903 (1st Cir. 1988); Ways v. City of Lincoln, 871 F.2d 750, 754-55 (8th Cir. 1989).
Andrews v. City of Philadelphia, 895 F.2d 1469, 1485 (3rd Cir. 1990). The special potency of words exclusively reserved for or directed at women has already been noted. See Conclusion of Law No. 19. See also Lindemann & Kadue, Sexual Harassment in Employment Law 75 & nn. 102-03 (1992). Given the nature of the language repeatedly directed at Complainant Hoffman and other women at Respondent Mama Lacona's, Inc., the verbal harassment alone would be sufficient to establish a hostile and abusive work environment. See Findings of Fact Nos. 13-18, 26-27, 29-33.
6. The Effect of Combined Verbal and Physical Sexual Harassment Will Intensify the Hostility of the Environment and Increase the Likelihood That The Environment Will Be Found to Be Abusive:
28.
When the victim is the target of both verbal and non-intimate physical conduct, the hostility of the environment is exacerbated and a violation is more likely to be found. Similarly, incidents of sexual harassment directed at other employees in addition to the charging party are relevant to a showing of a hostile working environment. [citing e.g.] Hall v. Gus Construction Co., 842 F.2d 1010, [46 Fair Empl. Prac. Cases 573] (8th Cir. 1988).
Fair Employment Practices (BNA) 405:6681, 405:6691 "EEOC: Policy Guidance on Sexual Harassment" (March 19, 1990) (emphasis added). The intense combined verbal and physical harassment sustained by Complainant Hoffman and other waitresses is more than sufficient to establish the existence of a hostile and abusive working environment. See Findings of Fact Nos.13-34
7. The Commission Has Met the Requirements that The Working Environment At Respondent Mama Lacona's-West Be Shown to Have Been Considered Hostile and Abusive When Viewed From Both the Perspectives of the Complainant and of a Similarly Situated Reasonable Person:
29. The Complainant's working environment was found to be considered by her to be hostile or abusive. It was also found that such an environment would be considered hostile and abusive by any reasonable person. See Finding of Fact Nos. 25, 28, 31, 34, 56. Thus, the evidence in this case met both the subjective requirement that the Complainant personally find the conduct to be hostile or abusive, and the objective requirement that a similarly situated reasonable person would find such conduct be hostile or abusive. See Harris v. Forklift Systems, Inc,, ___ U.S. ___, 114 S. Ct. 367, 370, 371 (1993). The Commission, and several courts, have found that the reasonable person standard should take into account the victim's sex as one of the circumstances to be considered, due to the differing perspectives of men and women. See Cristen Harms, 11 Iowa Civil Rights Commission Case Reports 89, 125 (1992)(citing e.g. Ellison v. Brady, 924 F.2d 872, 54 Fair Empl. Prac. Cas. 1346, 1353 (9th Cir. 1991); Andrews v. City of Philadelphia, 895 F.2d 1469, 1482 (3rd Cir. 1990); Robinson v. Jacksonville Shipyards, Inc., 760 F. Supp. 1486, 55 Empl. Prac. Dec. at 6570 (M.D. Fla. 1991); Tindall v. Housing Authority, 55 Fair Empl. Prac. Cas. 22, 25-26 (W.D. Ark. 1991)). See also Burns v. McGregor Electronic Industries, Inc., 989 F.2d 959, 965 (8th Cir. 1993); Lehmann v. Toys 'R' Us, 626 A.2d 445, 453-54 (N.J. 1993). This difference is not important in this case as both males and females would find the challenged conduct to be abusive.
H. Respondents Mama Lacona's-West and Jim Lacona Knew or Should Have Known of the Harassment But Failed to Take Prompt and Appropriate Remedial Action:
30. The Commission has proven that Respondents Mama Lacona's-West and Jim Lacona, as well as other managers and agents of Mama Lacona's-West, knew or should have known of the harassment by Respondent Lopez and other members of the kitchen staff. See Findings of Fact Nos. 35-45. The Commission has also proven that Respondents Mama Lacona's-West and Jim Lacona failed to take prompt and appropriate remedial action. See Findings of Fact Nos. 46-55. Proof of these facts establishes the last element necessary to establish their liability for hostile environment sexual harassment committed by either supervisors or coworkers. See Vaughn v. Ag Processing, Inc., 459 N.W.2d 627, 632, 634 (Iowa 1990)(harassment by supervisor); Lynch v. City of Des Moines, 454 N.W.2d 827, 833, 835 (Iowa 1990)(harassment by coworkers).
31. There is little question that Respondents Mama Lacona's-West and Jim Lacona had actual knowledge of the harassment. "Where supervisors have witnessed co-worker harassment firsthand, courts have held that the employer had actual knowledge." Lindemann & Kadue, Sexual Harassment in Employment Law 242 (1992). See Finding of Fact No.36. Actual knowledge is also shown when either lower level first line supervisors or higher level management receive complaints about sexual harassment. Id. See Findings of Facts Nos. 35-45. This is true even when the first level supervisor did not report the harassment to higher levels of management. Id. Constructive knowledge of harassment is imputed to the employer when the acts of harassment are "so numerous that the employer would have had to know of them." Id. at 243. See Finding of Fact No. 36. Actual or constructive knowledge of the harassment, and the failure to remedy the harassment, is imputed to the employer because supervisors are considered to be agents of the employer. See e.g..Hall v. Gus Construction Co., 842 F.2d 1010, 1016, 46 Fair Empl. Prac. Cases 573 (8th Cir. 1988).
32. "An employer cannot stand by and permit an employee to be harassed by his co-workers." Vaughn v. Ag Processing, Inc., 459 N.W.2d 627, 634 (Iowa 1990)(citing DeGrace v. Rumsfeld, 614 F.2d 796, 803 (1st Cir. 1980)). The requirement for "prompt and appropriate remedial action," Lynch v. City of Des Moines, 454 N.W.2d 827, 833, 835 (Iowa 1990), imposes "a reasonable duty on an employer who is aware of discrimination in the workplace to take reasonable steps to remedy it." Vaughn v. Ag Processing, Inc., 459 N.W.2d 627, 634 (Iowa 1990).
33. Factors considered here in determining that this duty was not met were "the gravity of the harm, the nature of the work environment, and the resources available to the employer." Id. See Finding of Fact No. 55.
34. Remedial action has a two fold purpose. The first is to stop any harassment which is underway. The second is to deter future harassment. These purposes are the bench marks against which the appropriateness of remedial action is measured. Fuller v. City of Oakland, 47 F.3d 1522, 1528, 67 Fair Empl. Prac. Cas. 992 (9th Cir. 1995)(citing Ellison v. Brady, 924 F.2d 872, 882, 54 Fair Empl. Prac. Cas. 1346 (9th Cir. 1991)). "If 1) no remedy is undertaken, or 2) the remedy attempted is ineffectual, liability will attach." Id.
35. To the extent any attempt to remedy the harassment was undertaken by Respondents Mama Lacona's-West and Jim Lacona, it was wholly ineffective. See Findings of Fact Nos. 46-55. Their response to employee complaints about harassment was often to dissuade or appear to ignore the complaints. See Finding of Fact No. 52. Obviously, this is not a prompt or appropriate response to such complaints. Cf. Waltman v. International Paper Co., 875 F.2d 468, 480 (5th Cir. 1989)(summary judgment denied employer where employee's evidence suggests employer may have dissuaded her from seeking an investigation of harassment).
36. With the exception of the questioning of Robert Novak by Jim Lacona and Joe Lacona, there is no suggestion that there was any adequate investigation of the complaints of harassment. See Finding of Fact No. 54. It is well recognized that an adequate investigation is a first step in an appropriate response to complaints of harassment. Compare Fuller v. City of Oakland, 47 F.3d 1522, 1528, 67 Fair Empl. Prac. Cas. 992 (9th Cir. 1995)(inadequate investigation was a factor in determining that employer was liable); Ways v. City of Lincoln, 871 F.2d 750, 755 (8th Cir. 1989)(same); College-Town, Div. of Interco, Inc. v. Massachusetts Comm'n Against Discrimination, 508 N.E.2d 587, 594 (Mass. 1987)(cited in Vaughn v. Ag Processing, Inc. 459 N.W.2d at 635)(same) with Vaughn v. Ag Processing, Inc., 459 N.W.2d 627, 634-35 (Iowa 1990)(prompt and thorough investigation was a factor in determining employer response was appropriate); Spicer v. Virginia, 66 F.3d 705, 708 (4th Cir. 1995)(same); Saxton v. A. T. & T. Co., 10 F.3d 526, 535, 63 Fair Empl. Prac. Cas. 625 (7th Cir. 1993)(same); Hirschfeld v. New Mexico Corrections Dept., 916 F.2d 572, 577-78, 54 Fair Empl. Prac. Cas. 268 (10th Cir. 1990)(same); Steele v. Offshore Shipbuilding, Inc., 867 F.2d 1311, 1316, 49 Fair Empl. Prac. Cas. 522 (11th Cir. 1989)(same); Barrett v. Omaha Nat. Bank, 728 F.2d 424, 427 (8th Cir. 1984)(same).
37. "[A]n investigation is principally a way to determine whether any remedy is needed and cannot substitute for the remedy itself." Fuller v. City of Oakland, 47 F.3d 1522, 1529, 67 Fair Empl. Prac. Cas. 992 (9th Cir. 1995). Obviously, in a case such as this, where the actual and constructive notice of harassment may be sufficient to indicate a remedy is needed, a thorough investigation would, nevertheless, help determine the extent of the problem and of the required remedy.
38. Key elements of an investigation which were missing here included interviews of the complainant, the harassers, and coworkers who might be aware of such harassment. See Finding of Fact No. 54. Compare Fuller, 47 F.3d at 1529 (failure to promptly interview alleged harasser); Ways, 871 F.2d at 755 (complete failure to investigate alleged incident); College-Town, 508 N.E.2d at 589, 594 (failure to individually interview complaining employee and coworkers), with Vaughn, 459 N.W.2d at 634 (interviews of coworkers and supervisors); Spicer, 66 F.3d at 708 (interview of complainant and others); Hirschfeld, 916 F.2d at 577-78 (same); Steele, 867 F.2d at 1316(interview of employees); Barrett, 728 F.2d at 427 (interview of complainant, alleged harassers, and coworkers).
39. "'[A]ppropriate corrective action' . . . require[s] some form, however mild, of disciplinary measures. Action is 'corrective' only if it contributes to the elimination of the problem at hand. Because disciplinary measures are more likely to decrease the likelihood of repeated harassment than a mere request to stop the behavior, disciplinary measures are [required]." Intlekofer v. Turnage, 973 F.2d 773, 778, 59 Fair Empl. Prac. Cas. 929 (9th Cir. 1992)(construing 29 C.F.R. S.1604.11(d) of the EEOC Guidelines on Sexual Harassment)).
40. Given the severity and pervasiveness of the sexual harassment in this case, more than "sporadic pep talks" or "mere verbal chastisements" would be required "forcefully to convey the message that [harassment] would not be tolerated." DeGrace v. Rumsfeld, 614 F.2d 796, 805 & n.5 (1st Cir. 1980). See Waltman v. International Paper Co., 875 F.2d 468, 479, 50 Fair Empl. Prac. Cas. 179 (5th Cir. 1989). This does not mean, however, that strong, clear oral warnings will not be appropriate measures in many cases:
At the first sign of sexual harassment, an oral warning in the context of a counseling session may be an appropriate disciplinary measure if the employer expresses strong disapproval, demands that the unwelcome conduct cease, and threatens more severe disciplinary action in the event the conduct does not cease. [This is an appropriate] remedy in a case . . . where the harassing conduct is not extremely serious and the employer cannot elicit a detailed description concerning the occurrence from the victim. . . . [C]ounseling is sufficient only as a first resort. If the harassment continues, limiting discipline to further counseling is inappropriate. Instead, the employer must impose more severe measures in order to ensure that the behavior terminates. [T]he extent of the discipline depends on the seriousness of the conduct.
Intlekofer v. Turnage, 973 F.2d at 779-80 (emphasis added). See Vaughn v. Ag Processing, Inc., 459 N.W.2d 627, 635 (Iowa 1990)(harasser received written and verbal reprimands "and told that if there were any reoccurrences of 'inappropriate behavior,' he would be discharged."); Barrett v. Omaha Nat. Bank, 728 F.2d at 426 (cited in Vaughn at 635)(harasser reprimanded, placed on 90 day probation, informed discharge would follow further misconduct). The directives and warnings in this case did not meet the requirements for appropriate oral warnings set forth above. See Findings of Fact Nos. 47-51.
41. Another aspect of appropriate remedial action which could have been, but was not, undertaken in the instant case was to keep the Complainant, and others who complained about sexual harassment, informed of the efforts, minor as they were, to counter it. See Spicer v. Virginia, 66 F.3d 705, 708 (4th Cir. 1995)(no liability-employee informed of steps taken to address her complaint); Barrett v. Omaha Nat. Bank, 728 F.2d at 426 (no liability- employee informed of disciplinary steps taken against her harassers); College-Town, Div. of Interco, Inc. v. Massachusetts Comm'n Against Discrimination, 508 N.E.2d at 594 (liability found-failed to inform employee of staff meeting where her complaint was investigated).. See Finding of Fact No. 53. Nor were the victims of harassment asked to make suggestions for correcting their working environment. Cf. Ellison v. Brady, 924 F.2d at 883 (failure to request employee's input on return of harasser to her workplace reflects insufficient regard for her interest in avoiding hostile environment).
42. No efforts were made to have offending employees apologize to their victims or otherwise commit to ending their harassment. See Vaughn v. Ag Processing, Inc., 459 N.W.2d at 634 (harasser apologized to employee for his swearing). An apology alone, however, is not sufficient remedial action as the law "requires more than a mere request to refrain from discriminatory conduct." Davis v. Tri-State Mack Distributors, 981 F.2d 340, 343 (8th Cir. 1992).
43. Once the offending employees renewed their harassment after being admonished by David Lihs and Jim Lacona, Respondents Mama Lacona's-West and Jim Lacona had an obligation to take stronger action such as suspending or discharging the offending employees. E.g. Intlekofer v. Turnage, 973 F.2d at 779-80 (Repeated warnings to the harasser, without harsher discipline, "did nothing except assure [the harasser] that continued harassment would be tolerated."); Hirschfeld v. New Mexico Corrections Dept., 916 F.2d at 577-78 (demotion of harasser); DeGrace v. Rumsfeld, 614 F.2d at 805 n.5 (citing with approval the three day suspension of an employee who used a racial epithet in Howard v. Nat'l Cash Register Co., 388 F.Supp. 603, 605 (S.D. Ohio 1975)).
44. Such disciplinary actions would be "both feasible and reasonable under the circumstances," Vaughn v. Ag Processing, 459 N.W.2d at 634 (quoting DeGrace v. Rumsfeld, 614 F.2d at 805), and consistent with the employer's duty to "let it be known . . . that . . . harassment will not be tolerated, and . . . [to] take all reasonable measures to enforce this policy." Id. (quoting DeGrace at 805). These actions were not, however, undertaken by the employer, Respondent Mama Lacona's-West, in this case, rendering it liable for sexual harassment. See Findings of Fact Nos. 51, 55-57. See Conclusion of Law No. 15.
I. Individuals May Be Liable For Violation of the Employment Provisions of the Iowa Civil Rights Act:
45. The Iowa Civil Rights Act states, in part:
1. It shall be an unfair or discriminatory practice for any:
a.. Person to . . . otherwise discriminate in employment . . against any employee because of the . . . sex . . . of such . . . employee.
Iowa Code S 216.6(1)(a).
46. A "person" is defined, in part, as meaning "one or more individuals. . . [or] corporations." Iowa Code S 216.2(10). An employer is defined, in part, as "every . . . person employing employees within the state." Iowa Code S 216.2(6). The prohibition of sex discrimination in employment by a "person," as opposed to an "employer," indicates that this prohibition is not limited to employers. The structure of the "unfair employment practices" section of the Act indicates that the broad prohibitions against employment discrimination are intended to apply to "person[s]", Iowa Code S 216.6(1)(a)(d); while other more specific prohibitions, apply to "labor organization[s]," id. at 216.6(1)(b)), or a combination of "employer[s], employment agenc[ies], labor organization[s]," id. at 216.6(1)(c)).
47. In determining the legal effect of the prohibitions against persons discriminating in employment on the basis of sex, the Act is to be "construed broadly to effectuate its purposes." Iowa Code S 216.18. As individuals, Respondents Jim Lacona and Joel Lopez are both "persons." See Iowa Code S 216.2(10). Thus, Respondent Joel Lopez is liable as a person who otherwise discriminated on the basis of sex, Iowa Code S 216.6(1)(a), through his acts of sexual harassment perpetrated against the Complainant and other employees at Mama Lacona's-West. Lopez's liability is established by proof of the first four elements of the sexual harassment claim because these elements define the duty violated by him, i.e. the duty to refrain from committing acts of sexual harassment. See Conclusion of Law No. 15. The fifth element applies to the, Respondent Mama Lacona's-West, and to Respondent Jim Lacona, because it defines the duty they violated, the duty to remedy sexual harassment committed by their employees. See Conclusion of Law No. 15.