BEFORE THE IOWA CIVIL RIGHTS COMMISSION
MAXINE FAYE BOOMGARDEN, Complainant, and IOWA CIVIL RIGHTS COMMISSION,
v.
HARDIN COUNTY VETERANS' COMMISSION BOARD and HARDIN COUNTY BOARD OF SUPERVISORS, Respondents.
CP # 07-86-14926
CONCLUSIONS OF LAW:
G. The Relationship Between the Veterans Preference Law and the Iowa Civil Rights Act:
32. In 1986, the year in which this hiring decision was made, the only veterans preference law which would have applied to this position was the limited veterans preference found in Iowa Code Chapter 70 (1985). This statute provided that veterans of specified past wars, including the "Vietnam Conflict beginning August 5, 1964 and ending on May 7, 1975 . . . who are citizens and residents of this state are entitled to preference in appointment and employment over other applicants of no greater qualifications." Iowa Code 70.1 (1985)(emphasis added).
33. This chapter contemplates a competition between a veteran covered by the statute and a non-veteran, there is no such thing as this veterans preference being applied to two competing veterans, where both of them are eligible for the preference provided by the statute. Nearguard v. Akers, 232 Iowa 1337, 1346 (1942); Douglas v. City of Des Moines, 206 Iowa 144, 147, 220 N.W. 72 (1928). See Geyer v. Triplett, 237 Iowa 664, 672, 22 N.W. 2d 329 (1946); Sorenson v. Andrews, 221 Iowa 44, 51, 264 N.W. 562 (1936); Kitterman v. Board, 137 Iowa 275, 178, 115 N.W. 885 (1908).
34. This chapter does not require a preference be given to a veteran unless the veteran is at least equally qualified to the non-veteran applicants against whom he or she is competing. Lyon v. Civil Service Commission, 203 Iowa 1203, 1212, 212 N.W. 579 (1927); see also Nearguard v. Akers, 232 Iowa 1337, 1346 (1942); Vislisel v. University of Iowa, 445 N.W. 2d 771, 772 (Iowa 1989). "[E]quality of qualifications is a condition to awarding the preference, and the purpose of requiring the ex-soldier to have equal qualifications before entitling him to preference is so as not to deprive the public of the benefit of superior service and the advantage of securing the best qualified [persons] for public service." Bender v. Iowa City, 222 Iowa 739,742, 269 N.W. 779 (1936).
35. Since the use of the veterans preference has a disparate impact on women and is not justified by business necessity, it would appear to violate the Iowa Civil Rights Act. However, Chapter 70 specifically requires a veterans preference in the limited circumstances described above. When two statutes conflict in this manner, it is best to interpret them in a manner which will give effect to both. Iowa Code 4.7. Therefore, whenever the application of a veterans preference is required under Iowa Code Chapter 70 (now renumbered to Chapter 35C), that chapter will operate as an exception to the Iowa Civil Rights Act. Whenever a veterans preference is exercised which is not required under Chapter 70, than the application of the preference may be held to violate the Iowa Civil Rights Act.
36. A similar result occurs with respect to the federal sex discrimination statute, Title VII of the Civil Rights of 1964. Title VII provides that it does not "repeal or modify any . . . law creating special rights or preferences for veterans." Section 712 of Title VII of the Civil Rights Act of 1964, as amended. However, when a a veterans preference is exercised which is not legally required, the "Courts have invalidated [such] voluntary preference under Title VII because of the adverse impact on women." Schlei, Employment Discrimination Law 433 (1983); See also Schlei, Employment Discrimination Law: Five Year Supplement 158.
37. In 1989, Chapter 250 of the Iowa Code was amended to provide that Veterans Affairs executive directors were "to possess the same qualifications as provided in section 250.3 for commission members," i.e. that they were to be veterans. (EX. R-11). This provision did not apply to any "person employed as an executive prior to the effective date of this Act," which would have been July 1, 1989, four years after the events in this case occurred. (EX. R-11) In other words, any non-veteran employed as a veterans affairs director before July 1, 1989, as the complainant would have been if hired, was permitted to remain in the position. (EX. R-11). See Iowa Code 250.6 (now 35B.6). Of course, it is not, and could not, be claimed by Respondents that this amendment is retroactive in its application or could, in any way, have been applied in 1986, over three years before its enactment. The 1989 amendment was allowed as an exhibit solely for the purpose of showing that legislator Charles Poncy had an interest in and experience in veterans affairs. (Tr. at 429-30).
38. As noted in the Findings of Fact, David Roelfs was less qualified than Complainant Boomgarden. See Findings of Fact Nos. 74-83. Therefore, the exercise of the veterans preference in Roelf's favor was not legally required and the veterans preference utilized in this case was a voluntary one which is subject to the Iowa Civil Rights Act and disparate impact analysis. See Conclusions of Law No. 35-36.
H. The Use of The Veterans Preference Has a Disparate Impact on Women:
39. The disparate impact theory of discrimination was first adopted by the Iowa Supreme Court in 1973. Wilson- Sinclair v. Griggs, 211 N.W. 2d 133, 140 (Iowa 1973). The Court quoted with approval the following language from the first United States Supreme Court decision recognizing the disparate impact theory:
What is required by Congress is the removal of artificial, arbitrary, and unnecessary barriers to employment when the barriers operate invidiously to discriminate on the basis of racial or other impermissible classification.
. . .
The Act proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in operation. The touchstone is business necessity. If an employment practice which operates to exclude Negroes cannot be shown to be related to job performance, the practice is prohibited.
. . .
We do not suggest that either the District Court or the Court of Appeals erred in examining the employer's intent; but good intent or absence of discriminatory intent does not redeem employment procedures or testing mechanisms that operate as "built-in headwinds" for minority groups and are unrelated to measuring job capacity.
Id. (quoting Griggs v. Duke Power, 401 U.S. 424, 430-32(1971)(emphasis added by Iowa Supreme Court). The Iowa Supreme Court held:
We adopt the persuasive rationale of Duke Power. Our legislation prohibits unfair employment practices without reference to motive, although motive is always a legitimate field of inquiry. A conscious course of practice which results in a "built-in headwind" against minorities is surely as illegal as a practice motivated by clear discriminatory intent.
Id.
40. Although Wilson-Sinclair v. Griggs and Griggs v. Duke Power were both race discrimination cases, it is well-established law that the disparate impact theory also applies in sex discrimination cases. E.g. Dothard v. Rawlinson, 433 U.S. 321, 328-329, 331 (1977); Hy-Vee Food Stores, Inc. v. Iowa Civil Rights Commission, 453 N.W. 2d 512, 521 (Iowa 1990).
41. Potential and actual applicant flow statistics were used to prove disparate impact in this case. See Findings of Fact Nos. 89-92. It has been recognized for many years that such statistics can be used to show disparate impact. In a widely cited case, the Eighth Circuit listed three principal measures of disparate impact:
A disproportionate racial impact may be established statistically in any of three ways. The first procedure [Potential applicant flow] considers whether blacks [or women] as a class (or at least blacks [or women] in a specified geographical area) are excluded at a substantially higher rate than whites.
. . .
The second procedure [actual applicant flow] focuses on a comparison of the percentage of black and white [or male and female] job applicants actually excluded by the employment practice or test of the particular company or governmental agency in question.
. . .
Finally, a third procedure [population (labor market)/workforce comparison] examines the level of employment of blacks [or women] by the company or governmental agency in comparison to the percentage of blacks [or women] in the relevant geographical area.
Green v. Missouri Pacific Pacific Railroad, 523 F. 2d 1290, 1293-94 (8th Cir. 1975)(cited in Baldus, Statistical Proof of Discrimination 80 n.5 (1980).
42. The third procedure has since been modified by the United States Supreme Court's decision in Wards Cove Packing Company v. Antonio, 490 U.S.---, 104 L. Ed.2d 733, 747, 109 S.Ct. 2115 (1989), which was in turn modified by the enactment of the Civil Rights Act of 1991. Although this procedure was not used in this case, it shall be discussed because Respondents, on brief, have misinterpreted the focus of the Commission's and Complainant's statistical proof by claiming that it only shows an imbalance in the workforce. (Respondents' Brief at 14). Apparently respondents have confused the terms "workforce" and "labor market" for the Commission and Complainant do not rely on any workforce statistics at all, while "labor market" and population statistics are used to determine the potential applicant flow. "Workforce" refers to the employer's employees, while the labor market refers to the geographic area from which employees are drawn. Schlei, Employment Discrimination Law 1333 (1983). See Findings of Fact Nos. 86-87. In this case, workforce data are not relied upon and would not normally be relied upon given that there had been only one incumbent in the position before the 1986 opening. See Finding of Fact No. 2.
43. It is true that, under Wards Cove, evidence showing that there is a sexual imbalance in the company's workforce when compared to the relevant labor market would not be considered sufficient, by itself, to show disparate impact. Wards Cove Packing Company v. Antonio, 104 L.Ed. 2d at 751. (For example, showing that an employer's workforce (all its employees) is 15% female, while the labor market is 52% female). Rather, the statistical proof must focus on the impact of a particular employment practice, Id. The first inquiry under the method of Wards Cove would be to compare the sexual composition of the at-issue jobs and the sexual composition of the qualified population in the relevant labor market. Id., 104 L.Ed.2d at 747. (For example, that 15% of the machinists employed by an employer are female, while 30% of the machinists in the labor market are female.) Wards Cove, however, has now been modified by passage of the Civil Rights Act of 1991 to again allow a demonstration of the disparate impact of an entire decision-making process, as opposed to a particular employment practice, when the plaintiff can demonstrate that the elements of that process are not capable of separation. 42 U.S.C 2000e-2(k)(1)(B)(i).
44. In this case, the statistical proof does focus on the impact of a particular employment practice, the veterans preference, but does so by relying primarily on potential applicant flow data and, secondarily, on actual applicant flow data. See Findings of Facts Nos. A leading treatise on statistical proof of discrimination explains the potential applicant flow method:
[T]he method of comparing qualification [selection] rates in a pool of potential applicants was first used by the Supreme Court in Griggs v. Duke Power Co. . . . Its important characteristic is that it involves an estimate of the effects of a hypothetical selection process, i.e. evidence of deferential qualifications rates among potential applicants provides a basis for estimating how they would be treated if they were considered in a selection procedure which applied the rule at issue and no other. [This] procedure can be used in any case challenging a neutral rule which embodies an objective criterion of selection on which relevant data for potential or actual applicants are available. For example, in Griggs the challenge was to a rule requiring a high school diploma as a condition for employment. The Court looked at the distribution of high school diplomas among the black and white potential applicants in North Carolina (12 percent of the black and 34 percent of the white applicants had diplomas) and concluded that the rule would have a substantial adverse impact since many more whites than blacks could satisfy the requirement. The same approach was recently used by the Court in Dothard v. Rawlinson [a sex discrimination case].
Baldus, Statistical Proof of Discrimination 107 n.14(1980).
45. In Dothard v. Rawlinson, the United States Supreme Court upheld the reliance on potential applicant flow data in the form of generalized national population statistics to show the disparate impact of minimum height and weight requirements of five feet two inches and 120 pounds on women potential applicants for correctional counselor positions in a prison in Alabama. National data demonstrated that these standards "would exclude 41.13% of the female population while excluding less than one percent of the male population." Dothard v. Rawlinson, 433 U.S. 321, 329-30 (1977). "Affirmatively stated, approximately 99.76% of the men and 58.87% of the women would meet both these physical qualifications." Id. at 330 n.12.
46. The Court rejected the argument that "a showing of disproportionate impact on women based on generalized national statistics should not suffice to establish a prima facie case" of discrimination under the disparate impact theory. Id. at 330.
47.
The plaintiffs in a case such as this are not required to exhaust every possible source of evidence, if the evidence actually presented on its face conspicuously demonstrates a job requirement's grossly discriminatory impact. If the employer discerns fallacies or deficiencies in the data offered by plaintiff, he is free to adduce countervailing evidence of his own. In this case no such effort was made.
Id. at 331. Like the employer in Dothard, the Respondents have offered no countervailing statistical evidence.
48. In this case, the statistics offered are more reflective of the labor market, and thus even more probative, than national statistics such as those offered by the plaintiff in Dothard. Based on Respondent' rejection of an applicant because he lived outside the county, its recurring practices, and the residence of job applicants, an appropriate determination was made that the proper geographic scope for the labor market was Hardin County. Baldus, Statistical Proof of Discrimination 117-20 (1980); Schlei, Employment Discrimination Law 1362 (1983); Schlei, Employment Discrimination Law: 1987-89 Supplement 194 (1991). See Findings of Fact No. 48.
49. The Federal courts have held that the use of voluntary veterans preferences in employment have a disparate impact on women, are not justified by business necessity, and therefore constitute illegal sex discriminatory practices. Bailey v. Southeastern Area Joint Apprenticeship Committee, 561 F. Supp. 895, 911-12 (N.D. W. VA. 1983); Krenzer v. Ford, 429 F. Supp. 499, 502 (D.C. 1977).
49. The Equal Employment Opportunity Commission (EEOC) has also struck down voluntary veterans preferences in two cases brought before it based on their disparate impact on women. Notice N-915-056 (8/10/90)(EEOC Compliance Manual at 2099-20)(Citing EEOC Decisions para. 6577 and 6581 (CCH)(1983)).
50. The EEOC has taken "administrative notice of the fact that veterans' preferences, by their very nature, have historically placed women as a class at a disadvantage. As the cited statistics show, that disadvantage continues to this date. Therefore, it is the Commission's view that such preferences have an adverse impact on women for Title VII purposes." Id. at 2099-20).
51. The cited national statistics were the following:
| Sex | Percent of Total Veterans | (Number) |
| Males | 95.6% | (26,019,000) |
| Females | 4.4% | (1,208,000) |
Id. at 2099-17 (citing Office of Information Management and Statistics, Department of Veterans Affairs, Veteran Population (semi-annual report, 3/31/89)). When these percentages are compared to the Hardin County (96.8% male and 3.2% female) and State of Iowa (96.4% male and 3.6% female) veterans population statistics, it is clear that the EEOC would find that the veterans preference has a disparate impact on females in those locations.
52. Another way of illustrating what the Dothard court referred to as "evidence [which] . . . on its face conspicuously demonstrates a job requirement's grossly discriminating impact, " Dothard, 433 U.S. at 331, is by comparing the disparity in selection rates of potential applicants in this case to other cases where disparate impact has been found. See Id. at 330 n.12 (comparing Dothard's selection rates to those in Griggs); Baldus, Statistical Proof of Discrimination 35 (Supp. 1987).
CASE: SELECTION RATES OF POTENTIAL APPLICANTS:
| Griggs v. Duke Power | 34% white v. 12% black (high school) |
| Dothard v. Rawlinson | 99.76% male v. 58.87% female (Height./Weight.) |
| Krenzer v. Ford | 40% male v. 1% female (vet. pref.) |
| Hardin County (Population) | 32.2% male v. 1.0% female (vet. pref.) |
| Hardin County (Labor Force) | 39.6% male v. 2.0% female (vet. pref.) |
| State of Iowa (Labor Force) | 39.5% male v. 2.0% female (vet. pref.) |
Dothard v. Rawlinson 433 U.S. at 330 n.12; Griggs v. Duke Power, 401 U.S. at 430 n.6; Krenzer v. Ford, 429 F. Supp. at 502. See Finding of Fact No. 89.
53. In none of the three cases cited did the Courts rely on the results of tests of statistical significance or expert testimony to support the above findings of disparate impact. Such tests are used to determine whether the disparate impact reflected by a sample of a population represents an actual disparate impact within the whole population or is due to chance. See Baldus, Statistical Proof of Discrimination 189 (Supp. 1987)("[T]he question is what is the likelihood that the observed disparity represents a real impact . . . and not [a] . . . chance result that is likely to disappear when the same selection criterion is applied . . . to a much larger population of people"). In this case, the statistics presented do not show the results of the application of the criterion to a sample of the relevant population. Rather, they show the results of the application of the criterion to the entire relevant population. Under these circumstances expert testimony and tests of statistical significance are not required. In disparate impact cases "involv[ing] large samples and substantial disparities which are clearly significant [i.e. obviously not due to chance]," courts understandably ignore the issue of whether data has been subjected to tests of statistical significance. Id. at 170, 171.
54. A final way of demonstrating the severe disparate impact which the veterans preference has in Hardin County and the State of Iowa is by applying the federal "four-fifths rule." 29 C.F.R. 1607.4(D). See Baldus, Statistical Proof of Discrimination 47 n.88 (1980); Id. at 35 (Supp. 1987). Under this rule, "[a] selection rate for any . . . sex . . . which is less than four fifths (4/5)(or eighty percent) of the rate for the group with the highest rate will generally be regarded by Federal enforcement agencies as evidence of adverse impact." 29 C.F.R. 1607.4(D). As shown below, whether measured using the Hardin County population or labor force, or the State of Iowa labor force, the selection rate for women when the veterans preference is applied is always far less than four fifths or eighty percent of the selection rate for men. It is not more than five and one-tenth percent of the male selection rate. This shows disparate impact:
Hardin Cty. Pop. Select. Rate Women / Hardin Cty Pop. Select. Rate Men = 1.0% / 32.3% = .01 / .322 = .03 = 3.0% of selection rate for men.
Hardin Cty. Lab. Force Select. Rate Women / Hardin Cty Lab. Force Select Rate Men = 2.0% / 39.6% = .02 / .396 = .05 = 5.0% of selection rate for men.
Iowa Lab. Force Select. Rate Women / Iowa Lab. Force Select. Rate Men = 2.0% / 39.5% = .02 / .395 = .051 = 5.1% of selection rate for men.
See Finding of Fact No. 89
55. Respondents assert that the Iowa Supreme Court held in the Woodbury County case that "[a] single hiring decision by an employer is plainly insufficient to state a claim of discrimination under the disparate impact theory." Respondents Brief at 13 (citing but not quoting Iowa Civil Rights Commission v. Woodbury County Community Action Agency, 304 N.W. 2d. 443, 450 (Iowa App. 1981)). Woodbury County does not stand for such a general rule being applicable to all disparate impact cases. Woodbury County dealt with the impact of a subjective decision making process with the respect to promotions. "A claim is shown where supervisors subjectively make employment decisions without definite standards for review and a pattern clearly disfavoring minorities results." Id. at 449 (emphasis added). In Woodbury the plaintiff claimed that, in one instance only, Respondent's standard promotional procedures were not followed. Id. No pattern could emerge from a one-shot subjective decision making process.
56. In this case, however, a definite, objective standard, veterans preference, is being challenged. Under these circumstances, the objective standard can be applied to relevant populations or labor markets to ascertain if it has a disparate effect on potential applicants under the potential applicant flow method as utilized in Griggs v. Duke Power, Dothard v. Rawlinson, Krenzer v. Ford and the other cases discussed previously. See Conclusions of Law Nos. 39-41, 44-54.See also Gregory v. Litton Systems, Inc. 316 F. Supp. 401, 2 Fair Empl. Prac. Cas. 842, 843 (1970), aff'd in relevant part, 472 F. 2d 631, 5 Fair Empl.Prac. Cas. 267 (9th Cir. 1972)(individual claim of disparate impact established solely by potential applicant flow data indicating that application of objective criterion had a foreseeable disparate impact on blacks).
57. The methodology is different because the application of an objective criterion to a population of potential applicants relies on data, such as census data, which is readily available even if the criterion is only actually applied once. See generally, Dothard v. Rawlinson, 433 U.S. 321 (1977); Griggs v.Duke Power, 401 U.S. 424 (1971); Krenzer v. Ford, 429 F. Supp. 499 (D.C. 1977); Gregory v. Litton Systems, Inc., 316 F. Supp. 401 (1970). With subjective hiring or promotional processes however, there must be a "track record" of the results of a number of subjective decision-making process compiled over a period of time which will then be large enough to determine whether a pattern of decision-making exists which will show a disparate impact on a protected class. See generally, Iowa Civil Rights Commission v. Woodbury County Community Action Agency, 304 N.W.2d 443, 450 (Iowa App. 1981); Rowe v. General Motors Corp., 457 F2d 438 (5th Cir. 1972).
I. The Veterans Preference Is Not Justified By Business Necessity:
58. Until the United States Supreme Court 1989 decision in Wards Cove, it was abundantly clear that an employer found to have utilized an employment practice which had a disparate impact on a protected class could escape liability only by meeting a burden of persuasion requiring that it prove that the practice was justified by a "business necessity." Dothard v. Rawlinson, 433 U.S. 321, 329, 331 n.14 (1977); Griggs v. Duke Power, 401 U.S. 424, 431 (1971); Schlei, Employment Discrimination Law 83, 91-92 (1983); Schlei, Employment Discrimination Law 1987- 89 Supplement 3-4 (1991) . See Albemarle Paper Company v. Moody, 422 U.S. 405, 425-26 (1975).
59. Before Wards Cove, the law was that;
[F]or both private and public employers, "the touchstone is business necessity," Griggs, 401 U.S. at 431; a discriminatory employment practice must be shown to be necessary to safe and efficient job performance to survive a Title VII challenge.
Dothard v, Rawlinson, 433 U.S. 321, 331 n.14 (1977)(emphasis added). In Dothard, no business necessity was found because the employer "failed to 'rebu[t] the prima facie case of discrimination by showing that the height and weight requirements are . . . essential to effective job performance." Wards Cove Packing Co. v. Atonio, 104 LEd.2d 733, 761 (1989)(Stevens, J. dissenting)(quoting Dothard, 433 U.S. at 331).
60. In Wards Cove, however, the five member majority eased the requirements imposed on the employer for defending a disparate impact case. Instead of requiring a showing of business necessity, i.e. that a practice is essential to the safe and efficient operation of the business, the court held:
[T]he dispositive issue is whether a challenged practice serves, in a significant way, the legitimate employment goals of the employer . . . The touchstone of this inquiry is a reasoned review of the employer's justification for his use of the challenged practice. A mere insubstantial justification in this regard will not suffice . . . At the same time, though, there is no requirement that the challenged practice be "essential" or "indispensable" to the employer's business.
Wards Cove Packing Co. v. Atonio, 104 L.Ed.2d at 752-53.
61. The majority also held that the employer merely carried a "burden of producing evidence of a business justification for his employment practice" and not a burden of persuasion. Id.
62. The Wards Cove business necessity standards were reiterated in Hy-Vee v. Iowa Civil Rights Commission, but were not and could not have been applied to any reason given by the employer because the employer never came up with any reason for the practice. It "came forward with no evidence to justify the use of the discriminatory practice. Nor does Hy-Vee even argue any business justification for the practice." Hy-Vee, 453 N.W.2d at 519, 523 (Iowa 1990)(emphasis added). Therefore, although the Wards Cove business justification standards were discussed, they have never been adopted by the Iowa Supreme Court. Id.
63. The Wards Cove decision came under intense criticism, starting, but not ending, with the dissents, because of the way it had disregarded the well-established law of disparate impact and business necessity. E.g. Wards Cove, 104 L.Ed.2d at 755 (1989)(Blackmun, J. dissenting) ("One wonders whether the majority still believes that race discrimination . . . is a problem in our society, or even remembers that it ever was");Id. at 759-61 (Stevens, J. dissenting) (noting that prior cases held that employer had a burden or persuasion in rebutting a prima facie case of disparate impact and expressing astonishment that the majority now held that there was no requirement that the majority now held that there was no requirement that the practice be essential); Rabinove, Major U.S. Supreme Court Civil Rights/Affirmative Action Decisions, January-June 1989, 17 J. of Intergroup Relations 50 (1990)("a measurable setback to the cause of equal employment opportunity for minorities and women"); Taylor, Supreme Court Decisions Do Grave Damage to Equal Opportunity Law, 4 Civil Rights Monitor 1 (1989) ("In [Wards Cove and Other] decisions, the Court has constructed "built-in headwinds' of its own, relaxing the duties of employers, making it far more difficult for minorities and women to prove violations of the civil rights laws").
64. As the result of the opposition to the Wards Cove abandonment of the business necessity standard and of the requirement that the employer has to persuade the fact finder that the practice is so justified, these holdings of Wards Cove were legislatively overruled by the enactment of the Civil Rights Act of 1991. R. Belton, Remedies in Employment Discrimination Law 16 (Supp. 1993). Under Title VII, an employer is now again required to "demonstrate that the challenged practice is job related for the position in question and consistent with business necessity." 42 U.S.C. 2000e-2(k)(1)(A)(i).
65. Given that Wards Cove is now a dead letter and that the former business necessity standard has been reestablished in federal law, the later standard should be utilized by the Commission. This would also be consistent with the Commission's past decisions. In 1977, the Commission adopted a "business necessity" standard which accurately reflects that set forth by Griggs and Dothard:
The applicable test is not merely whether there exists a business purpose for adhering to the challenged practice; the test is whether there exists an overriding legitimate business purpose such that the practice is necessary to the safe and efficient operation of the business. Thus the business purpose must be sufficiently compelling to override any discriminatory impact; the challenged practice must effectively carry out the business purpose it is alleged to serve; and there must be no acceptable alternative policies or practices which would better accomplish the business purpose advanced, or accomplish it equally well with a lesser differential impact on affected classes.
Genevieve Sullivan, I Iowa Civil Rights Commission Case Reports 53, 54 (1977)(adopting the test set forth in Robinson v.Lorillard Corp., 444 F.2d 791, 792 (4th Cir. 1971)). This definition has been repeatedly relied on by the Commission over the years. E.g. Nanette Tollakson, II Iowa Civil Rights Commission Case Reports 34, 38 (1978); Laura Kellen, IX Iowa Civil Rights Commission 51, 54 (1988).
66. The reason set forth for requiring a veteran in the Veterans Affairs Director position in this case is based on the idea that veterans would prefer to deal with veterans with respect to the functions of the VAC. As indicated by the evidence in the record, this reason does not meet the stringent requirements of the business necessity defense. See Findings of Fact Nos. 93-99.
67. A similar rationale set forth under circumstances similar to this case was rejected by the Federal District Court for the District of Columbia, where the policy under attack was a requirement that doctors and attorneys employed on the Board of Veterans Appeals, which disposes of appellate claims involving veterans benefits, be veterans. Krenzer v. Ford, 429 F. Supp. 499, 500-01, 503 (D.C. 1977). The argument rejected was that the nature of the work and the Veteran's Administration's constituency required only veterans on the Board. Id. at 502.
68. On the one hand, well over 50% of the appeals to the Board involved issues relating to military service, including whether to provide additional benefits for wounds or whether a death is service connected. Id. Board members would also deal personally with veterans and their families. Id. at 502-03. Veterans organizations supported the continuation of the "veterans only" requirement for Board members. Id. at 503.
69. On the other hand, five non-veteran attorneys and some non-veteran physicians had been detailed to serve on the Board in an acting capacity for varying periods of time. Id. Also some of the work of the Board clearly involved issues for which military experience is irrelevant. Id. Given that the veterans preference acted as an absolute bar to the employment of non-veterans as Board members (in other than an acting capacity), the business necessity showing "is a particularly heavy burden," which the employer failed to meet. Id.