IOWA CIVIL RIGHTS COMMISSION REGULATORY PLAN FOR FY 2004

This plan is provided in response to Executive Order 9. It outlines anticipated regulatory actions by the Iowa Civil Rights Commission during Fiscal Year 2003.

REGULATORY OBJECTIVES

The regulatory objective of the Iowa Civil Rights Commission are to adopt rules which:

ANTICIPATED REGULATORY ACTIONS

Amend Chapter Defining Terms Used In Commission Rules

Description. This amendment would delete, add and amend definitions in the Commission's rules. For example, it would delete definitions of "chairperson" since that term is no longer used in the Code. Other definitions, notably the meaning of "verified", are used as a means of stating substantive rules and would be moved to a more logical places and recast as a substantive rules rather than as definitions. The most significant addition would be to add a definition of "probable cause" and then redraft the definition of "no probable cause" in terms of the meaning of "probable cause." The most viable alternative would be to have no definition of probable cause and instead rely on common understanding.

Cost & Benefit. There is little cost added to these changes. They are primarily to enhance clarity. Adding a standard definition of probable cause would enhance clarity and consistency without imposing any new burdens on the public. Having no definition of probable cause is a viable alternative which is somewhat less clear. The costs between the two are similar.

Legal Basis. Iowa Code 216.15(11) empowers the Commission to pass rules "to govern, expedite, and effectuate the procedures established by this chapter".

Need. The need for changes to the definitions is discussed in "costs and benefit".

Schedule. Submit draft to Commissioners by October 1, 2003.

Contact Person. Ron Pothast, 281-4473.

Assess Need For Rule Addressing Maintenance Of Local Commissions

Description. Iowa Code §219.19 requires that "A city with a population of twenty-nine thousand, or greater, shall maintain an independent local civil rights agency or commission consistent with commission rules adopted pursuant to chapter 17A." Furthermore "[a] city required to maintain a local civil rights agency or commission shall structure and adequately fund the agency or commission in order to … aid in effectuating the purposes of this chapter." Id. There is considerable confusion and disagreement over what an adequate funding level for a required local commission is to be. The commission intends to assess to what degree a rule could be passed clarifying this issue.

Cost & Benefit. Depending on the outcome of the assessment a rule might impose additional costs on some cities or it might result in a decrease in costs. The cost to a local government in maintaining a functioning commission will need to be balanced against the benefit to the State Commission's enforcement ability.

Legal Basis. Iowa Code 216.15(11) empowers the Commission to pass rules "to govern, expedite, and effectuate the procedures established by this chapter". Also §216.19 states that the local commission must be maintained in a manner "consistent with commission rules".

Need. The need for this assessment is discussed in description and "costs and benefit".

Schedule. Submit draft to Commissioners by December 1, 2003.

Contact Person. Ron Pothast, 281-4473

Amend Procedural Rules To Account For Special Filings

Description. This amendment would address filings by classes of persons, by people with related allegations, by the Attorney General and by the Iowa Civil Rights Commission.

Cost & Benefit. Currently the Commission does not file class actions but instead requires multiple filings by each individual. Under the court rulings, however, if an individual asserts in his charge that he is bringing the claim on behalf of "all others similarly situated" then a class action may be brought in court based on a right to sue letter. The proposed class action rule would allow the commission, after notice and a contested case hearing, to make awards on a class bases just as in court. Consistency of enforcement is enhanced. A rule addressing government filed cases will set standards and procedures for a process which is currently unregulated.

Legal Basis. Iowa Code 216.15(11) empowers the Commission to pass rules "to govern, expedite, and effectuate the procedures established by this chapter".

Need. The class action and joinder rule will reflect the current situation in the courts. Enforcement is made more effective. All of these rules, by looking beyond individual claims, takes the broader strategic view of enforcement currently absent from the Commission rules.

Schedule. Submit draft to Commissioners by March 1, 2004

Contact Person. Ron Pothast, 281-4473

Amend Rules To Standardize Affirmative Action

Description. The rule in question discusses the concept of "affirmative action" in the context of the laws against discrimination. The rule is designed to allow employers the ability to adopt affirmative action plans in a voluntarily attempt to remedy arguable past violations of the Act. As drafted the rule is overly strict in as much as it suggests that liability can be imposed for failure to adopt an affirmative action plan. An amendment to the rule bringing it in line with federal law is needed in order to provide to employers the same level of freedom of action as allowed under the federal laws. The agency should bring its rule in line with the federal law and provide that the parameters of the affirmative action defense in Iowa are the same as allowed by Title VII and the ADEA.

Cost & Benefit. The balancing of cost versus benefit in affirmative action plans is a difficult process which is still ongoing throughout society. By amending the rule to incorporate the standards developed in the national system, specifically under Title VII and the ADEA, the rule will better reflect this balance.

Legal Basis. Iowa Code 216.15(11) empowers the Commission to pass rules "to govern, expedite, and effectuate the procedures established by this chapter". Also Iowa Code chapter 216.5 empowers the Commission to enact substantive rules.

Need. The law in this area has developed considerably since the adoption of this rule. To the extent that the rule differs from the federal law on affirmative action programs as a defense it is likely invalid. See Davis v. Waterloo, 551 N.W.2d 876, 882 (Iowa 1996)("The extent to which affirmative action plans may be utilized to influence employment decisions on racial grounds is strictly circumscribed by existing law).

Schedule. Submit draft to Commissioners by June 30, 2004.

Contact Person. Ron Pothast, 281-4473