As the agency entrusted by the legislature with the enforcement of the Iowa Civil Rights Act, the Iowa Civil Rights Commission has the responsibility of determining the policies which will guide it, and the procedures it will use in carrying out its duties under the law. The procedures used in enforcing the Act include complaint filing, investigation, determination of finding (cause or no cause), conciliation, and public hearing The policies which determine how the procedures will be carried out are decided on in a number of different ways. Some of these ways are: policy statements issued by the Commission, promulgation of rules and regulations, and order ' s issued after public hearings. In effect, these policies are the Commission's interpretation of the Iowa Civil Rights Act and of the responsibilities imposed upon it (the Commission) by this statute. However, the courts in rendering decisions upon appeals from Commission rulings, are the final arbiters as to the correctness of Commission interpretations.
The Iowa Supreme Court recently upheld the Iowa Civil Rights Commission on 16 of 17 issues dealt with in the case of Ironworkers Local #67 and William Reed v. John Hart and the Iowa Civil Rights Commission. This landmark decision, handed down on November 11, 1971, marked the first time the 'Supreme Court of Iowa has ruled on, and thus interpreted the Iowa Civil Rights Act. As such it is of great importance to the Commission and the citizens of the state of Iowa served by the Commission. Similarly, it is important to those who challenge the policies and procedures of the Commission in its enforcement of the Act. [A detailed summary of the facts of the case and an analysis of the Court's ruling may be found in Appendix I of this report.]
Briefly summarized below are 17 major issues involved in the Commission's enforcement policies and procedures. These were brought to light in analyzing the Supreme Court's holdings in the Ironworkers case.
I. The Act is not unconstitutional under the doctrine of undue delegation of legislative power.
The Court so held because the Act is replete with safeguards protecting respondents affected by the Commission's action -this being the important consideration in the question of constitutionality. The Court affirmed the power of the Commission to formulate a remedy to eliminate the discriminatory practice.
II. The Act is not unconstitutional due to vagueness.
The language of the Act meets the constitutional test because its meaning is fairly ascertainable by reference to similar statutes, judicial determinations, and the dictionary, or its words have a common and generally accepted meaning the Court said.
III. Testing devices must be validated for cultural bias and job-relatedness.
The U. S. Supreme Court decision in the case of Griggs v. Duke Power is cited attesting to the inadequacy of broad and general testing devices, thus affirming the position the Commission has long held.
IV. The Iowa Civil Rights Act is to be broadly construed.
The Court here reiterates the statute and affirms the Commission's general orientation towards seeking remedies to discrimination.
V. The Act is aimed at correcting broad patterns of behavior,, rather than remedying individual disputes.
The Court thus affirms that discrimination (as forbidden by the Act) against one individual, is by its very nature pattern discrimination against a whole class of people. In any complaint, an aggrieved person represents the whole class of people of which he is a member.
VI. The Act is aimed at guaranteeing the civil rights of a person, not at controlling the actions of private individuals.
The union is not a social club. Social feeling and conduct manifested in discriminatory employment practices are subject to legislative action.
VII. The Commission (as an administrative agency) is not bound by the strict rules governing judicial proceedings.
The rules governing judicial proceedings are not ordinarily applicable to administrative agencies, unless made so by statute, because the functions of administrative agencies and courts are different.
VIII. The Commission may order prohibitive action to eliminate discriminatory practices.
The Court stated that the Commission's order to cease and desist was within the broad powers to enjoin, granted by the statute.
IX. The Commission may order affirmative action to correct the discriminatory situation.
Such action may include reinstatement, reemployment, and other such measures "as in the judgment of the Commission shall effectuate the purposes of the chapter" (§105A.9(12)).
X. The definition of an "aggrieved party" and of who can file a complaint is to be broadly construed.
Under the Act a complaint may be initiated by persons other than one directly aggrieved by a discriminatory or unfair practice. An employer is empowered to file a complaint when its employees refuse to comply with the Act.
XI. A complaint must only give sufficient information to enable the Commission to discern what the grievance is about.
The complaint was designed to protect equality of opportunity among all employees and prospective employees, even the most unsophisticated. The main function of a complaint is to trigger a Commission investigation.
XII. In racial discrimination cases statistics often demonstrate more than the testimony of many witnesses.
Federal courts have held, in regard to statistics, that nothing speaks so loud as zero. Persons may tell of the many positive actions they are taking, but statistics will often demonstrate the effects of those actions.
XIII. The use of diplomas and degrees as fixed measures of capability has the capacity for subtle discrimination.
The Court again cites the U. S. Supreme Court case of Griggs v. Duke Power Company and warns that the arbitrary and indiscriminate use of educational and other degree requirements without proper validation is prohibited.
XIV. In order to dislodge rigid patterns of past discrimination, the union has an obligation to recruit minorities into its apprenticeship programs and to provide them with work permits.
Past discrimination patterns must be remedied the Court attests. There is an affirmative obligation to recruit minorities into various programs and to provide them with the means to become fully trained and completely integrated into the work force. The disabilities of past discrimination must be overcome.
XV. It is obligatory to inform minority groups that all persons will be treated in a non-discriminatory manner.
Where discrimination has occurred in the past, its effects must be eliminated. Merely ending discriminatory actions is not enough. Positive efforts must be made to inform those discriminated against that henceforth they will be treated equally.
XVI. Mandatory reports and records must necessarily be kept to insure compliance with Commission orders.
Where discrimination has occurred it is reasonable to order the respondent to keep records and from these records to report to the Commission on its dealings with minorities so that the Commission can substantiate compliance.
XVII. In the Ironworkers case compensatory damages could not be awarded.
The Commission did not have the authority to grant compensatory damages to a corporation which had not been discriminated against.
Rules and Regulations
Under the provisions of section 105A.5 the Iowa Civil Rights Commission is empowered to "adopt, publish, amend, and rescind regulations consistent with and necessary for the enforcement . . . " of the Iowa Civil Rights Act. In reporting year 1971 the Commission promulgated two rules to aid in enforcement. These rules define the Commission's orientation to various areas of the law, so that all may know in more detail how the provisions of the law are to be applied.
SEX-SEGREGATED WANT ADS
Under the provisions of the Iowa Civil Rights Act, the Iowa Civil Rights Commission has adopted a rule defining which actions on the part of newspapers, and other publications publishing employment want ads, violate the Iowa Civil Rights Act as it relates to sex discrimination. Similarly, the rule applies to employers placing want ads with these publications, and explains those actions which are violative of the Act, as well as those which are not. The rule, entitled "Sex- Segregated Want Ads," is published in the Iowa Departmental Rules as Chapter 1 of the rules of the Iowa Civil Rights Commission, and became effective December 18, 1970.
Chapter 105A.7(l)(c) of the Iowa Civil Rights Act, states that it is an unfair or discriminatory practice for any "Employer, employment agency, . . . to directly or indirectly advertise or in any other manner indicate or publicize that individuals of any particular . . . sex . . . are unwelcome, objectionable, not acceptable, or not solicited for employment . . . unless based upon the nature of the occupation." (emphasis added) Chapter 105A.8(l) states that "it shall be an unfair or discriminatory practice for any person to intentionally aid, abet . . . another person to engage in any of the practices declared unfair or discriminatory by this Chapter." These two sections of the Code, when read together, are the basis for the rule.
The rule requires all Iowa newspapers to cease using sex segregated want ads. Newspapers using the following three headings for their want ad columns: "Male Help Wanted," "Female Help Wanted," and "Male and Female Help Wanted," or similar sex segregated headings, violate the Iowa Civil Rights Act by aiding employers to violate the Act. Furthermore, the rule requires all Iowa newspapers and other publications to refrain from printing and publishing any job order which includes a sex preference. It is the responsibility of newspapers and other publications, not only to stop using sex-segregated want ads, but also to stop printing and publishing any job order which indicates a preference for a person of a particular sex.
The rule sets out the procedure by which a newspaper, or other publication printing want ads for employers, can avoid legal difficulties. It states that in certain limited situations a person of a particular sex can be sought. The Commission believes that an employer who, in good faith, feels it must employ a person of a particular sex for a particular job should be able to advertise for such a person. However, for every want ad containing a sex preference the employer must file an affidavit explaining the necessity for the advertisement. A copy of this affidavit should be forwarded to the Iowa Civil Rights Commission.
It is the responsibility of the employer-advertiser to justify the need for placing a want ad or job order which includes a sex preference. The publication's responsibility is to be aware of what words are used in its job advertising and if words indicating a sex preference appear, then the newspaper or other publication must have an affidavit explaining the use of such word or words. Simply then, the employer-advertiser is responsible for the content of the affidavit, and the publication is responsible for the content of the advertisement. It is the intent of the Commission's rule to relieve newspapers of the burden of deciding whether each affidavit stated bona fide reasons for printing a sex preference in a want ad or job order.
EMPLOYEE SELECTION PROCEDURE
In another exercise of its rule-making power for the purpose of expediting enforcement of the Iowa Civil Rights Act., the Iowa Civil Rights Commission has issued rules concerning employee selection procedures, specifically testing. Entitled "Rules on Employee Selection Procedures", they become Chapter 2 of the rules of the Iowa Civil Rights Commission (effective September 15, 1971).
The Rules do not outlaw testing; they are meant to stop discriminatory testing. An evaluation of complaints filed with the Commission reveals that many testing procedures used by employers, unions, and employment agencies, although they appear fair and equitable on the surface, are in fact subtle and insidious tools used to exclude minorities and women from the mainstream of the labor force.
The purpose of the Rules is "to contribute to the implementation of non-discriminatory personnel practices." The Rules affect employers, labor unions and employment agencies.
In addition to formal psychological tests, the Rules apply to such other employment standards as scored application forms, personal interviews, educational requirements and work experience.
The Rules state that while professionally devised tests used in conjunction with other tools may significantly aid in developing an efficient work force, they may also have a discriminatory effect. In many cases, minority job candidates experience disproportionately high rates of rejection because they fail to achieve a minimum test score. Yet, in many cases, there is no evidence that the tests are valid predictors of good performance on the job.
The Rules were developed to provide "workable standards for employers, labor unions., and employment agencies" in establishing non-discriminatory employee selection procedures. A test is discriminatory when it screens out a disproportionately large number of classes protected by the Iowa Civil Rights Act when it has not been shown to be valid for its intended purposes.
Validation of a test requires the presentation of empirical data which demonstrate that the test accurately measures some skill, knowledge, aptitude, or characteristic which is relevant to the performance of the job in question.
In certain cases, where there are job progression structures and seniority provisions for advancement, tests have been used at the entry level to predict ability to perform at the higher positions in the promotion ladder. The Rules state that such tests are permissible only when "there is a high probability that persons employed will in fact attain that higher level job within a reasonable period of time."
With respect to employment agencies, the Rules cover not only tests given by the agencies, but also those tests which employers or unions ask the agencies to administer for them. The Rules state, "an employment agency or service will be expected to refuse to administer a test where the employer or union does not supply satisfactory evidence of validation."
The Rules urge employers, unions and employment agencies to provide an opportunity for retesting and reconsideration to earlier "failure" candidates who have availed themselves of more training or experience.
Public hearings are held when a complaint goes the full route of administrative remedy. The decision is made to go to public hearing when the Commission believes that discrimination has occurred but the respondent refuses to conciliate. Therefore, it is left to the judgment of a hearing examiner or a hearing panel to decide if discrimination has taken place in the case at hand. If the hearing examiner finds that discrimination did occur, the Commission will issue an order defining actions to be taken to remedy the discrimination and may include both prohibitive and affirmative steps. If the examiner's decision is that no discrimination was involved, then the case will be closed. Either decision may be appealed to the courts.
In reporting year 1971 the Iowa Civil Rights Commission conducted 11 public hearings. On 7 of those cases orders have been issued. Five of the cases on which orders have been issued are summarized below., with the facts of the case, conclusions of law, and order of the Commission.
DISCRIMINATORY EMPLOYMENT TESTING ORDERED STOPPED
Discrimination on the basis of race was involved when Wilson-Sinclair Company failed to promote Leo Griggs, the Iowa Civil Rights Commission determined at a public hearing on July 26, 1971. The Commission directed the Cedar Rapids company to stop using its discriminatory testing and to give Griggs (a black worker situated in one department for 26 years) a chance to move to a higher paying job in the mechanical department.
For ten years Griggs had tried to move from the beef offal department into the mechanical department. A requirement for transfer into that department is passing a battery of three tests including the Bennett Mechanical Comprehension Test. Griggs had passed two of the tests (company's arithmetic test and Wonderlic Personnel Test), but had been stymied by the Bennett test, having failed it ten times, although coming within a half point of passing on one occasion. Discrimination was charged in the company's failure to transfer Griggs to the mechanical department ten years before when he had first requested it (this was before the battery of three tests was required), and in the company's use of nonvalidated tests.
Testimony in the public hearing brought out the following:
a. Wilson-Sinclair Company used tests as absolute criteria in accepting mechanical department employees even though the company's own written policy is that tests alone should not disqualify job applicants.
b. No evidence was given to show those who could pass the tests did their particular jobs better than those who couldn't pass. Neither the Bennett nor the Wonderlic test was intended to measure the ability to learn or perform a particular job or category of jobs.
c. Due to socio-economic position,
psychological factors, cultural background, and other reasons, minority
persons don't do as well on paper-and-pencil tests as white people do.
Thus test scores are not necessarily valid predictors of a person's ability
to do a specific job, especially if the test has not been validated for
the particular job in question.
On the basis of the above facts
the Commission found discrimination and issued an order directing the company
to discontinue use of the Bennett Mechanical Comprehension Test. The order
further directed that Leo Griggs be transferred to the mechanical department
for a trial period of at least six months, after which time it could be
determined which job he would be best suited for. Griggs was to be given
back pay plus interest from
1965. Other provisions of the order specified that WilsonSinclair set up
an affirmative action program for the recruitment, hiring, promotion and
upgrading of minority employees, and that it set up a working relationship
with minority groups in the Cedar Rapids area.
The Commission's order has been appealed to the district court by Wilson- Sinclair Company.
COMMISSION ORDERS USAGE OF "CHOOSE YOUR NEIGHBOR" CARDS STOPPED
In a case that culminated in a public hearing the Iowa Civil Rights Commission has determined that the use of "Choose Your Neighbor" cards by Hawkeye Realty, Inc. of Cedar Rapids amounted to racial discrimination.
The origin of the case occurred in 1969 when it was brought to the attention of the Commission that realtors in several southeast Iowa cities were using "Choose Your Neighbor" cards. Realtors claimed that use of the cards was merely a sales gimmick which attempted to get publicity and promote a quick sale and that the intent was not to perpetuate segregated neighborhoods. However, the Commission, after studying the matter, drafted a statement in August of 1969 saying that it considers use of devices such as "Choose Your Neighbor" cards to be in violation of the Iowa Civil Rights Act of 1965, as amended, in that they tended to maintain segregated neighborhoods by not giving all persons in the city equal notice that the property was for sale or rent.
The Iowa Real Estate Commission included a real estate code of ethics with its license renewals in October 1969 which stated in part that "Real estate brokers and salesmen should not use "Choose Your Neighbor" cards and solicitation devices that have the operative effect of foreclosing an open and fair real estate market. (The Iowa Civil Rights Commission considers the use of these cards to be a discriminatory practice.)" (emphasis added)
In the Hawkeye Realty case the Commission found that "Choose Your Neighbor" cards were distributed only in an allwhite neighborhood and that no black people could be found who had ever received these cards anywhere in the city. A Cedar Rapids realtor, who had once used the cards himself, admitted that such cards were used by realtors to maintain segregated neighborhoods.
The Iowa Civil Rights Commission rendered an order in accordance with the decision of the hearing examiner, Mrs. Merle Full.The order contains the following provisions:
1. That Hawkeye Realty, Inc., cease and desist use of "Choose Your Neighbor" cards.
2. It is recommended that the owners
of Hawkeye Realty, Inc., Betty Anderson and George Hill, be required to
surrender their Iowa real estate license to the Iowa Real Estate Commission
for a minimum period of 30 days That the Iowa Real Estate Commission investigate
the conduct of the parties with the view toward removal of their license.
Further that this Commission will make a recommendation to the Iowa Real
Estate Commission that the license of the parties be suspended for a minimum
period of 30 days.
3. That Hawkeye Realty, Inc. include a statement with respect to a policy of non-discrimination in all advertisements for a period of at least a year.
4. That Hawkeye Realty, Inc. report to the Iowa Civil Rights Commission monthly detailing business conducted with minorities.
NOTE: Hawkeye Realty, Inc. has appealed the Commission decision and order to the district court.
COMMISSION AWARDS BACK PAY TO MEXICAN-AMERICAN
The Iowa Civil Rights Commission has determined at a public hearing that discrimination due to national origin was involved when Massey Ferguson, Inc. terminated Heriberto Zamora from service with the company in March, 1970. Zamora was fired when the company claimed that he had falsified health insurance claims. Testimony at the public hearing revealed that Zamora did receive double benefits (from 2 insurance companies) on some claims, but that Massey Ferguson had never informed its employees that this was not acceptable and that a person couldn't carry his own separate health insurance policy. The answer to one of the health insurance claim questions seems to have been marked by someone other than Zamora, although he was held to blame. No other employees have been similarly discharged nor was evidence presented to show that any attempts were made to discover if any other employees may have checked the wrong box in filing insurance claims.
Another Mexican-American was discharged from Massey Ferguson for horseplay involving fire although horseplay with lighted cigarettes in the plant was shown to be common (with lighted cigarettes dropped in the Mexican-American's pockets). No other employees of that department have been discharged for horseplay of any kind.
Further testimony showed that Mexican-Americans are subjected to harassment and racial slurs by both management personnel and fellow workers at Massey Ferguson.
The issue that was determined in this case was whether Zamora and/or other Mexican-Americans were subjected to different treatment than non-minorities. The Iowa Civil Rights Commission concluded from the testimony at the hearing that Zamora was treated differently and was discharged because of his national origin.
The Commission issued an order which included the following provisions:
1. That Massey Ferguson, Inc. cease
and desist from discriminatory practices.
2. That Heriberto Zamora be awarded
back pay commencing on March 6, 1970 and continuing to the date a job is
offered to him by Massey Ferguson, Inc. at the same pay rate or at a higher
rate than the position he held on March 6, 1970.
3. That Massey Ferguson, Inc. shall
reinstate Zamora in his previous job or a better job and reinstate all
4. That Massey Ferguson, Inc. institute a continuing training program in intergroup relations for supervisory employees.
Other provisions included Massey Ferguson's development of an Affirmative Action Program, the development of a working relationship with Mexican-American groups, and regular reporting to the Iowa Civil Rights Commission concerning minority employment.
NOTE: Massey Ferguson, Inc. has appealed the order of the Commission to the district court. Heriberto Zamora has filed a private law suit accusing Massey Ferguson, Inc. and the United Auto Workers Union of conspiring to deprive him of collective bargaining rights. He seeks $150,000 in compensatory damages and $150,000 in punitive damages.
COMMISSION FINDS DISCRIMINATION IN PUBLIC ACCOMMODATIONS
The Iowa Civil Rights Commission determined at a public hearing that Jerry's Tavern of Shenandoah, Iowa discriminated against Mexican-American persons because of their national origin by failing to serve them.
The owner of Jerry's Tavern, Lynden Burrow, admitted that he had refused to serve beer to three Mexican-Americans telling them that it was the policy of the tavern and that it was the policy of the city. While in conciliation, Burrow had agreed to stop refusing to serve Mexican-Americans, however, he would not agree to one section of the Conciliation Agreement. That section said that Burrow would not allow the harassment of minority customers by non-minority customers in the tavern. It also stated that the police wouldn't be called to intimidate minority persons -- although Burrow had the right to keep peace as long as all customers were treated equally. The provision further stated that Burrow would not allow the ridicule of customers speaking a different language or require them to speak English.
Testimony at the hearing brought out that some of the Mexican-Americans residing in Shenandoah do not speak English, including two of the persons who had been refused service. It was also learned that Mexican-Americans have traditionally felt welcome in only one tavern in Shenandoah.
The Iowa Civil Rights Commission concluded that national origin discrimination had occurred and issued an order which included the following provisions:
1. That all employees of Jerry's Tavern be made aware of the establishment's non-discrimination policy.
2. That a clearly visible public notice will be posted stating that Jerry's Tavern will not refuse service to anyone because of race, creed, color, ancestry, religion, or sex.
3. That Jerry's Tavern will advertise in the local media as to its non-discrimination policy.
4.That Jerry's Tavern will report
to the Iowa Civil Rights Commission about minority patronage of the establishment
and any disturbances involving minorities. (This would include incidents
of minority harassment by non-minorities including ridicule due to language
differences. It would also include incidents of calling the police to intimidate
BLACK FEMALE DENIED JOB BECAUSE
The case originated when Mrs. Louise Wieslander, operator of a cafeteria in the Iowa Employment Security Building, contacted the Iowa State Employment Service seeking an employee for her restaurant. A job developer for the Concentrated Employment Program, Leonard Turner, sent Mrs. Edith Brown, a Black woman, to Mrs. Wieslander for consideration. Mrs. Wieslander refused to hire Mrs. Brown, saying that her employees worked in close
quarters and that this would require them to work too close to a Black. She also indicated that her customers wouldn't like the Black employee. She said she had no objection to hiring
Blacks, for on occasion she had hired them. However, this was only into janitorial service -- where they could work after the other employees had left and would have no customer contact.
On the basis of the above set of facts the Commission found discrimination because of race. It ordered Mrs. Wieslander to make available and offer to Mrs. Brown a full- time job in the cafeteria. It was further ordered that Mrs. Brown be paid back wages. In addition, Mrs. Wieslander was to seek out and recruit minorities for future job openings.
The Commission order has been appealed to the district court by Mrs. Wieslander.