JENNIE V. MILLER-SUHR, Complainant,

VS.

ART QUIRING TRUCK DIVISION, INC., and ART QUIRING Respondents.

CONCLUSIONS OF LAW

1. The complaint, as amended, was timely filed, processed and the issues in the complaint are properly before the Hearing officer and ultimately before the Commission.

2. Art Quiring Truck Division, Inc. and Art Quiring are "employers" and "persons" as defined in Iowa Code §601A.2(2) and (5)(1981), and are therefore subject to Iowa Code §601A.6 and §601A.11 and do not fall under any of the exceptions of 601A.6(5).

ISSUE I - WAS ART QUIRING'S FAILURE TO OFFER JENNIE MILLER-SUHR FURTHER TRUCK DRIVING WORK BECAUSE OF HER REJECTION OF HIS SEXUAL OVERTURES?

1. The applicable statutory provision is as follows:

1. It shall be an unfair or discriminatory practice for any:

a. Person to refuse to hire, accept, register, classify, or refer for employment, to discharge any employee, or to otherwise discriminate in employment against any applicant for employment or any employee because of the ... sex ... of such applicant or employee, unless based upon the nature of the occupation...

2. In Hensen v. City of Dundee, 682 F.2d 897 1982), the United States Court of Appeals for the Eleventh Circuit set forth elements which must be proven to establish a claim of sexual harassment. These elements include the following:

a. The employee belongs to a protected group In the case at issue, Jennie Miller-Suhr is female and, therefore, a member of a protected group.

b. The employee was subject to unwelcome sexual harassment. The type of conduct that may constitute sexual harassment has been defined as: "sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature..." 29 C.F.R. § 1604. 1 l(a) (198 1). In order to constitute harassment, such conduct must be unwelcome in that the employee did not solicit or incite it, and in the sense that the employee regarded the conduct as undesirable or offensive. Art Quiring denies any acts of sexual harassment. There was testimony that he usually took the female trainees on their first run. The scheduling of the trip with Miller-Suhr on Saturday at 1:00 p.m. for a Monday A.M. delivery is suspect. The "undressing" rule, although reasonable based on cleanliness, was not reasonable for mixed driving teams. At least one other witness substantiated the evidence that Quiring has a reputation for sexually harassing the women employees. It is clear that the sexual advances were unwelcome, were not solicited and that Miller-Suhr regarded such conduct as offensive.

c. The harassment complained of was based upon sex. There is no evidence that Quiring treated male employees in the same way he treated Miller-Suhr. It is concluded that but for her sex, Miller-Suhr would not have been subjected to sexual harassment.

d. The harassment complained of affected a "term, condition, or privilege" of employment. The fact is that Complainant was not called in for another run after her rejection of Quiring's sexual overtures. There was conflicting testimony as to policy of calling in during an off-run period. The policy was clear and drivers adhered to the policy of calling every morning when they were on a run. Although the written policy does not differentiate between off-and on-run situations, other drivers understood the policy as applicable only to when they were on the road, and was not enforced in any other manner, and the fact that Miller-Suhr did not call in as the reason she was not given a run is not credible. She had an answering machine and the evidence shows that Quiring did not call her although it was customary to do so when they wanted a driver to take a run. Evidence also supports the fact that runs were available. Testimony by Darlo Daly indicates that Quiring had decided to not hire Miller-Suhr upon their return from the run. The testimony by the Todds, Quiring's in-laws, related to Miller-Suhr being upset because Quiring had reprimanded her, is just not credible.

Sexual harassment is employment discrimination on the basis of sex because demands are made only on female employees and continued employment or advancement is conditional on acceptance. The demands become an additional term or condition of employment, imposed because of gender, thereby violating Iowa Code section 601A.6. See Barnes v. Costle, 561 F.2d 983,989, (D.C. Cir. 1977). It is concluded that Respondent violated Iowa Code Chapter 601A, in its failure to offer Complainant further runs.

ISSUE II - WAS THE FILING OF A DEFAMATION SUIT BY ART QUIRING AGAINST JENNIE MILLER-SUHR DONE IN RETALIATION FOR FILING OF THIS COMPLAINT WITH THE COMMISSION?

1. The applicable statutory provision is Iowa Code section 601A. 11, in pertinent part as follows:

It shall be an unfair or discriminatory practice for:

***

2. Any person to discriminate against another person in any of the rights protected against discrimination on the basis of .. sex ... by this chapter because such person has ... filed a complaint ... under this chapter...

Art Quiring did file a petition in district court alleging defamation of character, specifically, on the basis of the allegations set forth in this complaint. No other defamatory writings, statements or actions, except the job service information which was also found to be protected communication, were alleged by Quiring in the state court action. The allegation in the pleading constitutes an admission of a retaliatory motive.

Therefore, the issue is purely legal. Does Quiring's state defamation action against Complainant, the charging party, based solely on Complainant's employment discrimination charge, violate Iowa Code 601A. I I? The petition was filed on December 9, 1983. The complaint against Quiring was filed with the Commission in June 1982.

The provisions under 42 U.S.C. §2000e-3(a) are similar to the Iowa statute. In E.E.O.C. v. Virginia Carolina Veneer Corp., 495 F. Supp. 775, 777-778 (1980), the United States District Court found that employees are protected from employer retaliation for filing complaints with the EEOC. They found further that defendant's action in filing the state court defamation action was unquestionably retaliatory in nature. That court concluded that there is an absolute privilege for filing a discrimination charge and that the absolute privilege is required to ensure the policy of nondiscrimination under Title VII. The Hearing Officer agrees. Iowa Code 601A.15 provides that: "Any person claiming to be aggrieved by a discriminatory or unfair practice may ... file with the commission a ... complaint..." A complaint must be filed to initiate enforcement of the Iowa Civil Rights Act. The legislative intent of §601A. 11, was to ensure uninhibited access to the Act's enforcement mechanism. The Court in E.E.O.C. v . Virginia Carolina Veneer Corp., further noted that: "The importance of maintaining free access to the Commission is so great that the truth or falsity of a charge, may not be considered in providing protection to a person filing a charge." The Court granted summary judgment and awarded the Commission attorney fees and cost. In E.E.O.C. v. Levi Strauss & Co, 515 F.Supp. 640,643- 44 (1981), the Court stated that it could not be concluded that all defamation actions in the wake of sexual harassment charges filed before the Commission are violations of Title VII. That case, however, can be distinguished on the basis that the allegations of defamatory remarks were made orally and stated to employees and subordinates of the employer. In the prior case and the case at issue, the only allegations of defamation were in the complaint per se. It is concluded that Respondent violated Iowa Code 601A.11(2).

ISSUE III - IN THE EVENT THAT RESPONDENT VIOLATED IOWA CODE CHAPTER 601A, HAS COMPLAINANT ESTABLISHED A RIGHT TO ANY REMEDIES PROVIDED IN CHAPTER 601A?

Complainant requests loss of income, emotional distress damages and attorney fees.

1. Loss of Income. Complainant was off work from May 6, 1982 through November 1, 1982. She received $782.24 for November and December 1982, when she found a comparable job. She has continued comparable work since that time. It is concluded that her loss of income should cover only the period from May 6 to November 1, 1982. Furthermore, the unemployment compensation she received in 1982 should be deducted from this amount. The necessary information to compute a loss of income award is not in evidence. Counsel for the parties shall submit a stipulation as to that amount within 10 days after issuance of this proposed decision.

2. Emotional distress damages. There was no testimony upon which an award for emotional distress can be made. Although it could be concluded that Complainant was emotionally affected simply by the actions of the Respondent, this Hearing Officer refuses to speculate as to what extent that may have occurred.

3. The Complainant incurred actual damages in the amount of $1,629.53 from the retaliatory defamation suit brought by Art Quiring in response to, and for the purpose of "chilling" Ms. Miller- Suhr's exercise of her rights. Miller-Suhr should be awarded $1,629.53 as actual damages.