ORLANDO RAY DIAL, COMMISSIONER; CRISTEN HARMS, and MIKE DE VOLDER, Complainants,

and

IOWA CIVIL RIGHTS COMMISSION,

VS.


FRIEDMAN MOTORCARS, LTD., MIKE FRIEDMAN, TIM MANNING, GARY FRIEDMAN, SCOTT HENRY, PAT SULLIVAN and CHERYL RUBLE, Respondents.

CONCLUSIONS OF LAW

Jurisdiction:

1. Commissioner Dial's, Cristen Harms' and Mike DeVolder's complaints were timely filed within one hundred eighty days of the discriminatory practices alleged therein. Iowa Code § 601A.15(12). See Findings of Fact Nos. 1-3, 7, 76-82, 124-26. All of Cristen Harms' employment, and therefore, all of her allegations, fell within one hundred eighty days of the filing of her complaint. See Findings of Fact Nos. 2, 7.

2. A discriminatory policy or system, which is continued into the limitations period, constitutes a continuing violation. Hy-Vee Food Stores v. Iowa Civil Rights Commission, 483 N.W.2d 512,529 (Iowa 1990). Under the reasoning set forth in Hy-Vee, Respondents' policies of not considering or hiring Blacks or females for salespersons positions, or of providing Blacks unequal service constitute continuing violations.

3.

A systematic policy of discrimination is actionable even if some or all of the events evidencing its inception occurred prior to the limitations period. The reason is that the continuing system of discrimination operates against employees [or the Commission or other aggrieved parties] and violates his or her rights right up to a point in time that falls within the applicable limitations period. Such continuing violations are most likely to occur in the matter of placements or promotions.
...

Under this theory, the attack is upon the system rather than just its application to the complainant personally. So an employee [or the Commission or other aggrieved parties] may challenge the discriminatory policy even though the employee was not denied a particular . . . benefit within the limitations period. Reed v. Lockheed Aircraft Corp., 613 F.2d 757, 759-61 (9th Cir. 1980); accord Roberts v. North Am. Rockwell Corp., 650 F.2d 823, 828 (9th Cir. 1981) (hiring system would not consider women.)(emphasis added)(further citations omitted).

Id.

4. The Respondents' maintenance of a racially and sexually hostile working environment, as well as the continued retaliatory abuse of Complainant DeVolder, are also violations over time which constituted continuing violations into the charge filing period. See Lynch v. City of Des Moines, 454 N.W.2d 827, 832 (Iowa 1990). See Finding of Fact No. 125.

5. All the statutory prequisites for hearing have been met, i.e. investigation, finding of probable cause, attempted conciliation, and issuance of Notice of Hearing. Iowa Code § 601A.15. See Findings of Fact No. 5. See Ruling on Partial Motion to Dismiss.

6. Dial's, Harms' and DeVolder's complaints are also within the subject matter jurisdiction of the Commission as the allegations, that the Respondents engaged in race, sex, and disability discrimination in employment, race discrimination in public accommodations, and retaliation, all fall within the statutory prohibitions against unfair practices in employment, accommodations or services, and retaliation. Iowa Code § 601A.6, .7, and .1 1 (1 985).

7. "It shall be a ... discriminatory practice for any: a. person to refuse to hire . . . or to otherwise discriminate in employment against any applicant . . or employee because of the race. . . . sex, . . or disability of such applicant or employee. . . . c. Employer ... or the employees, agents, or members thereof to directly or indirectly ... in any ... manner indicate ... that individuals of any particular ... race . . . [or] sex . . . are unwelcome, objectionable, not acceptable, or not solicited for employment ... unless based on the nature of the occupation." Iowa Code § 601A.6. "It shall be a . . . discriminatory practice for any owner . . . proprietor, manager . . . of any public accommodation or any agent or employee thereof: a. To refuse or deny to any person because of race . . . the . . . advantages . . . [or] services . . . thereof, or to otherwise discriminate against any person because of race ... in the furnishing of such advantages . . . [or] services. Iowa Code § 601A.7. "It shall be a discriminatory practice for: ... 2. Any person to discriminate against another person in any of the rights protected against discrimination ... by this chapter because such person has lawfully opposed any practice forbidden under this chapter, obeys the provisions of this chapter, or has filed a complaint, testified, or assisted in any proceeding under this chapter." Iowa Code § 601 A. 1 1. (emphasis added).

Standing of Complainant Mike DeVolder to Complain About Race and Sex Discrimination Against Others:

8. Respondent urges that Complainant Mike DeVolder lacks standing in regard to that portion of his complaint where he complains about sex discrimination against female applicants, employees, and customers or racial discrimination against Black applicants and customers. Respondent argues that, in order for a complainant to be aggrieved by such discrimination, he must establish membership in the disadvantaged group, i.e. that he is Black or female. The Iowa Civil Rights Act, in the Respondents' view, "does not allow a person to complain of discriminatory conduct to others." Respondents place their reliance on federal-cases concerning standing to sue under Title VII of the Civil Rights Act of 1964, Iowa cases on standing to sue in court, and Iowa Rules of Civil Procedure relating to real parties in interest and standing. Respondents Brief at 22-24.

9. "Standing" or the "stand in g to sue" doctrine refers to the concept that a party must be "sufficiently affected so as to insure that a justiciable controversy is presented to the court. The requirement of' standing' is satisfied if it can be said that the plaintiff has a legally protectible and tangible interest at stake in the litigation." BLACK'S LAW DICTIONARY 1260 (5th ed. 1979)(emphasis added). See Hawkeye Bancorporation v. Iowa College Aid Commission, 360 N.W.2d T9-8, 801 (Iowa 1985)(plaintiff in court must have specific, personal, and legal interest in litigation and be injuriously affected in order to have standing to sue).

10. In Iron Workers Local No. 67 v. Hart, 191 N.W.2d 758 (Iowa 1971), the Iowa Supreme Court rejected the proposition that "[a] complainant must show a personal right of his-not to be discriminated against because of his race, creed, color, sex, national origin or religion-was infringed upon in order to foundation a charge under chapter [601 A]." Id. at 766-67.

11. The Court went on to note that Respondents relied "on federal cases concerning standing of plaintiff to sue....... Of course federal rules of civil procedure are there applicable, including those relating to real party in interest, standing, and class actions. These cases are not pertinent here, where the charge is litigated before the state commission." Id. at 766.

12. State cases defining standing to sue in district court and the Iowa Rules of Civil Procedure concerning standing and real parties in interest also do not apply here. See Id. ("We hold strict procedural rules in this area are not applicable"). "The functions of administrative agencies and courts are so different that the rules governing judicial proceedings are not ordinarily applicable to administrative agencies unless made so by statute." Id. at 769. There is no statute providing that Iowa Rules of Civil Procedure 2 and 104, the rules relied on by Respondents, apply in contested cases before this Commission.

13. The Act allows "any person claiming to be aggrieved by a discriminatory or unfair practice" to file a complaint. Iowa Code § 601A.15. An aggrieved person is one who has "suffered loss or injury; . . . one who is injured in a legal sense, one who has suffered an injury to person or property," In Re Vetter's Estate, 297 N.W. 554, 556 (Neb. 1941)(cited in lronworkers at 767); or whose "legal right is invaded by the act complained of." American Surety Co. v. Jones, 51 N.E.2d 122, 125 (111. 1943)(cited in Ironworkers at 767).

14. In Ironworkers, the complaint against a union, lronworkers Local No. 67, was filed on behalf of a corporate employer, The Weitz Company, Inc.. Id. at 766-67. The union had actively interfered, through "sick-outs" and other means, with the company's attempts to hire Blacks through an affirmative action hiring program required by Weitz's construction contract with the federal government. Id. at 761-63. The company was found to have sustained enough loss and damage through the Respondents' actions so as to be an "aggrieved person." Id. at 766-67.

15. On its face, DeVolder's complaint demonstrates that he claims to be aggrieved by Friedman's discriminatory conduct towards Blacks and females:

Throughout my employment at Friedman Motorcars, Ltd . . . my work environment was pervaded by sexual harassment of female employees and customers and racial harassment of Black customers. Albeit not the intended victim of the harassment, I was a victim nevertheless. The harassment by Sales Managers Mike Friedman, Scott Henry, and Pat Sullivan substantially interfered with my work performance, my peace of mind, and my life away from work.

DeVolder Complaint (emphasis added).

16. The evidence in the record demonstrates that Mike DeVolder sustained enough loss and damages to meet the legal definition of "aggrieved person." See Findings of Fact Nos. 64, 66-67, 102-105. 115.

17. Assuming that it is appropriate to refer to federal discrimination cases as analogous authority for determining whether complainants are "aggrieved persons" with respect to injuries they have suffered due to discrimination against others not of their sex or race, the greater weight of authority supports the proposition that they are. See Trafficante v. Metropolitan Life Insurance Co., 409 U.S. 205, 209, 212 (1972)(housing-aggrieved by loss of important benefits from interracial associations); Clayton v. White Hall School District, 875 F.2d 676, 679-80 (8th Cir. 1989) (employee has right to work in environment free of unlawful discrimination-harm is lost benefits of associating with members of other races); Stewart v. Hannon, 675 F.2d 846, 850 (7th Cir. 1982)(employment-aggrieved by loss of important benefits from interracial associations); EEOC v. Mississippi College, 626 F.2d 477, 483 (5th Cir. 1980)(same); EEOC v. Bailey Co., Inc., 563 F.2d 439, 453 (6th Cir. 1977)(same); Waters v. Heublein, Inc., 547 F.2d 466, 469-70 (9th Cir. 1976)(same); Bartelson v. Dean Witter & Co., 86 F.R.D. 657, 665 (E.D. Penn. 1980)(same).

Order and Allocation of Proof - The Burden of Persuasion:

18. The "burden of persuasion" in any proceeding is on the party which has the burden of persuading the finder of fact that the elements of his case have been proven. BLACK'S LAW DICTIONARY 178 (5th ed. 1979). The burden of proof in this proceeding was on the complainants to persuade the finder of fact that the elements of each allegation of discrimination and retaliation have been proven. Linn Co-operative Oil Company v. Mary Quigley, 305 N.W.2d 728, 733 (Iowa 1981). Of course, in discrimination cases (including sexual harassment cases), as in all civil cases, the burden of persuasion is "measured by the test of preponderance of the evidence," Iowa R. App. Pro. 14(f)(6), and not by proof beyond a reasonable doubt or other standards.

19. The burden of persuasion must be distinguished from what is known as "the burden of production" or the -burden, of going forward." The burden of production refers to the obligation of a party to introduce evidence sufficient to avoid a ruling against him or her on an issue. BLACK'S LAW DICTIONARY 178 (5th ed. 1979).

Federal Court Decisions As Precedent:

20. Although Federal court decisions applying Federal anti-discrimination laws are not controlling in cases under the Iowa Civil Rights Act, Franklin Manufacturing Co. v. Iowa Civil Rights Commission, 270 N.W.2d 829, 831 (Iowa 1978), they are often relied on as persuasive authority in these cases. Iowa State Fairgrounds Security v. Iowa Civil Rights Commission, 322 N.W.2d 293, 296 (Iowa 1982). Opinions of the Supreme Court of the United States are entitled to particular deference. Quaker Oats Company v. Cedar Rapids Human Rights Commission, 268 N.W.2d 862, 866 (Iowa 1978).

Order and Allocation of Proof -Where Complainant Relies on Direct Evidence of Discrimination:

21. "Direct evidence" is that "evidence, which if believed, proves existence of [the] fact in issue without inference or presumption." It is "that means of proof which tends to show the existence of a fact in question, without the intervention of the proof of any other fact, and is distinguished from circumstantial evidence, which is often called "indirect". BLACK'S LAW DICTIONARY 413-14 (1979).

22. Examples of direct evidence that a protected class status, such as race or sex, is a motivating factor in an employment decision include comments by decision makers expressing a preference for employees who are members of a particular protected class or comments indicating that stereotypes of members of a particular protected class played a role in the challenged decision or practice. See e.g. Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S. Ct. 1775, 104 L. Ed. 2d 268, 288 (1989)(promotion) ; Barbano v. Madison County, ____ F.2d ____ 54 Fair Empl. Prac. Cas. 1287, 1290, 1292 (2nd Cir. 1990)(hiring); Buckley v. Hospital Corporation of America, 758 F.2d 1525, 1530 (llth Cir. 1985)(discharge); Storey v. City of Sparta Police Department, 667 F. Supp. 1164, 45 Fair Empl. Prac. Cas. 1546, 1551 (M.D. Tenn. 1987) (hiring). By analogy, the same reasoning applies in public accommodations cases. Diane Humburd, 10 Iowa Civil Rights Commission Case Reports 1, 6-7 (1989)(denial of child care services).

23. The proper analytical approach in a case with direct evidence of discrimination is, first, to note the presence of such evidence; second, to make the finding, if the evidence is sufficiently probative, that the challenged practice discriminates against the complainant because of the prohibited basis; third, to consider any affirmative defenses of the respondent; and, fourth, to then conclude whether or not illegal discrimination has occurred. See Trans World Airlines v. Thurston, 469 U.S. 111, 121-22, 124-25, 105 S. Ct. 613, 83 L.Ed. 2d 523, 533, 535 (1985)(Age Discrimination in Employment Act). With the presence of such direct evidence, the.analytical framework, involving shifting burdens of production, which was originally set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L.Ed. 2d 207 (1973), and subsequently adopted by the Iowa Supreme Court, e.g. Iowa State Fairgrounds Security v. Iowa Civil Rights Commission, 322 N.W.2d 293,296 (Iowa 1982); Consolidated Freightways v. Cedar Rapids Civil Rights Commission, 366 N.W.2d 522,530 (Iowa 1985), is inapplicable. Landals v. Rolfes Co., 454 N.W.2d 891, 893-94 (Iowa 1990); Price-Waterhouse v. Hopkins, 490 U.S. 228, 109 S. Ct. 1775, 104 L. Ed. 2d 268, 301 (1 989) (O'Connor, J. concurring); Trans World Airlines v. Thurston, 469 U.S. 11 1, 121, 124-25, 105 S. Ct. 613, 83 L.Ed. 2d 523, 533 (1985); Schlei & Grossman, .Employment Discrimination Law: Five Year Cumulative Supplement 473, 476 (2nd ed. 1989).

24. The reason why the McDonnell Douglas order and allocation of proof is not applicable where there is direct evidence of discrimination, and why the employer's defenses are then treated as affirmative defenses, i.e. the employer has a burden of persuasion and not just of production, is because:

[T]he entire purpose of the McDonnell Douglas prima facie case is to compensate for the fact that direct evidence of intentional discrimination is hard to come by. That the employer's burden in rebutting such an inferential case of discrimination is only one of production does not mean that the scales should be weighted in the same manner where there is direct evidence of intentional discrimination.

Price-Waterhouse v. Hop", 490 U.S. 228, 109 S. Ct. 1775, 104 L. Ed. 2d 268, 301 (1989)(O'Connor, J. concurring). See also Landals v. Rolfes Co., 454 N.W.2d 891, 893-94 (Iowa 1990).

25. In this. case, there is direct evidence in the record that race and sex were motivating factors in Respondents Friedman Motorcars, Ltd.'s and Mike Friedman's failure to hire or consider for hire Blacks and females for salesperson positions. There is also direct evidence of their policy and practice of avoiding Black customers based on the stereotype that Blacks cannot financially qualify for car purchases and of the discriminatory treatment given to the McCiendons. See Findings of Fact Nos. 23, 36, 49-50, 56, 58-59, 62. The inquiry, however, does not end there, for the affirmative defenses of the Respondent must be examined. Trans World Airlines v. Thurston, 469 U.S. 1 1 1, 1 21, 1 24-25, 1 05 S. Ct. 613, 83 L. Ed. 2d 523, 533 (1985). The 'Respondents' failed to meet their burden of persuasion with regard to establishing any affirmative defenses to these allegations. See Findings of Facts Nos. 41-48, 53.

26. There is some authority suggesting that "direct evidence" in the context of discrimination law "means evidence that shows that the impermissible criterion played some part in the decision-making process, not 'direct evidence' as opposed to circumstantial evidence." 2 Employment Discrimination Coordinator § 19469 (1991)(citing Barbano v. Madison County, ___ F.2d, ___ 54 Fair Empl. Prac. Cas. 1287 (2nd Cir. 1990)). This is a more liberal approach than that followed in the paragraphs above as the commentator suggests that the burden of persuasion can be shifted to the Respondent if the Complainant has established that the impermissible criterion played some part in the decision-making process with any admissible 'direct' or 'circumstantial' evidence. Under either analysis, there is direct evidence of discrimination in this case. The more conservative analysis, however, has been followed.

Order and Allocation of Proof Where Complainant Relies on Circumstantial Evidence of Discrimination:

27. In the typical discrimination case, in which the complainant uses circumstantial evidence to prove disparate treatment on a prohibited basis, the burdens of production, but not of persuasion, shifts. Iowa Civil Rights Commission v. Woodbury County Community Action Agency, 304 N.W.2d 443, 448 (Iowa Ct. App. 1981). These shifting burdens of production "are designed to assure that the [Complainant has] his day in court despite the unavailability of direct evidence." Trans World Airlines v. Thurston, 469 U.S. 111, 121, 105 S. Ct. 613, 83 L. Ed. 2d 523, 533 (1985) (emphasis added).

28. The Complainant has the initial burden of proving a prima facie case of discrimination by a preponderance of the evidence. Trobaugh v. Hy-Vee Food Stores, Inc., 392 N.W.2d 154, 156 (Iowa 1986). The burden of establishing a prima facie case of discrimination is not onerous. Texas Dep't. of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981).The complainant is merely required to produce enough evidence to permit the trier of fact to infer that the employer's action was taken for a discriminatory or retaliatory reason. Id. at 254 n.7. This showing is not the equivalent of an ultimate factual finding of discrimination. Furnco Construction Corp. v. Waters, 438 U.S. 579 (1978). Once a prima facie case is established, a presumption of discrimination arises. Trobaugh v. Hy-Vee Food Stores, Inc., 392 N.W.2d 154,156 (Iowa 1986).

29. The burden of production then shifts to the Respondent, i.e. the Respondent is required to produce evidence that shows a legitimate, nondiscriminatory reason for its action. Id.; Linn Cooperative Oil Company v. Quigley, 305 N.W.2d 728, 733 (Iowa 1981); Wing v. Iowa Lutheran Hospital, 426 N.W.2d 175, 178 (Iowa Ct. App. 1988). If the Respondent does nothing in the face of the presumption of discrimination which arises from the establishment of a prima facie case, judgment must be entered for Complainant as no issue of fact remains. Hamilton v. First Baptist Elderly Housing Foundation, 436 N.W.2d 336, 338 (Iowa 1989). It Respondent does produce evidence of a legitimate non-discriminatory reason for its actions, the presumption of discrimination drops from the case. Trobaugh v. Hy-Vee Food Stores, Inc., 392 N.W.2d 154,156 (Iowa 1986).

30. Once the Respondent has produced evidence in support of such reasons, the burden of production then shifts back to the Complainant to show that the reasons given are pretextual. Trobaugh v. Hy-Vee Food Stores, Inc., 392 N.W.2d 154, 157 (Iowa 1986); Wing v. Iowa Lutheran Hospital, 426 N.W.2d 175, 178 (Iowa Ct. App. 1988). Pretext may be shown by "persuading the [finder of fact] that a discriminatory reason more likely motivated the [Respondent] or indirectly by showing that the [Respondent's] proffered explanation is unworthy of credence." Wing v. Iowa Lutheran Hospital, 426 N.W.2d 175, 178 (Iowa Ct. App. 1988) (quoting Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 256, 101 S.Ct. 1089,1095, 67 L. Ed. 2d 207, 216 & n.10 (1981)).

31. This burden of production may be met through the introduction of evidence or by cross-examination. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 255, 101 S. Ct. 1089, 1095, 67 L. Ed. 2d 207, 216 & n.10 (1981). The Complainant's initial evidence and inferences drawn therefrom may be considered on the issue of pretext. Id. at n.10. This burden of production merges with the Complainant's ultimate burden of persuasion, i.e. the burden of persuading the finder of fact that intentional discrimination occurred. Id. 450 U.S. at 256, 101 S. Ct. at 1 67 L. Ed. 2d at 217. When the Complainant demonstrates that the Respondent's reasons are pretextual, the Complainant must prevail. United States Postal Service Board of Governors v. Aikens, 460 U.S. 711,717-18 (1983)(Blackmun, J. concurring).

Application of Order and Allocation of Proof Relying on Circumstantial Evidence of Discrimination to Allegations of Failure to Hire On the Basis of Disability, Race, or Sex.

32. No evidence was produced on the allegations of failure to hire or consider for employment as salespersons on the basis of disability. Therefore, the Commission has failed to establish that allegation.

33. The allegations that Respondents Mike Friedman's and Friedman Motorcars, Ltd. failed to hire or consider females and Blacks on the basis of, respectively, their sex and race were sufficiently established through direct evidence. Nonetheless, these violations can also be shown, and particularly with respect to the failures to hire Bill Edwards and the failure by Respondents Scott Henry and Friedman Motorcars, Ltd. to hire Jody Borgman, through circumstantial evidence.

34. Under the McDonnell Douglas analysis, the Commission has established prima facie cases in these failures to hire by showing:

1 .Each was a member of a protected class.

2. Each applied for an available position.

3. Each possessed the minimum objective qualifications for the position.

4. Each was rejected for the position.

5. Respondent either continued to seek other applicants or to have positions open for which they would consider new applicants after rejecting each of them.

See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 1824, 36 L.Ed. 2d 668, 677 (1973); Woodbury County v. Iowa Civil Rights Commission, 335 N.W.2d 161, 165 (Iowa 1983)(citing United States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 103 S.Ct. 1478, 75 L.Ed 2d 403). See Findings of Fact Nos. 21, 33, 35, 38, 52-53.

35. With respect to the failure to hire Jody Borgman, Respondents failed to produce evidence of any legitimate, non-discriminatory reason for failing to hire her other than non-credible testimony to the effect that she was not qualified for the position. See Findings of Fact Nos. 52-53. In light of the fact that it was established that she was, in fact, qualified, this may be viewed either as an unrebutted prima facie case or as a case where Respondents' legitimate nondiscriminatory reason was shown to not be credible. In either event, discrimination on the basis of sex is established. See Conclusions of Law Nos. 29-30.

36. With respect to the failure to hire tester Bill Edwards, Respondent articulated legitimate, nondiscriminatory reasons for their actions which were found to not be credible. See Findings of Fact Nos. 41-46. Discrimination on the basis of race is established. See Conclusion of Law No. 30. Although there have been post-complaint hirings of Blacks as salespersons; substantial changes in hiring policies "in the face of litigation are equivocal in purpose, motive, and performance." Reed v. Arlington Hotel, 476 F.2d 721, 724 (8th Cir. 1973)(quoting Jenkins v. United Gas Corporation, 400 F.2d 28,33 (5th Cir. 1968) and citing PARAM v. Southwestern Bell Telephone Co., 433 F.2d 421, 426 (8th Cir. 1970). See also Teamsters v. United States, 431 U.S. 324, 341-42 (1977)("The company's later changes in its hiring . . . policies could be little comfort to the victims of its earlier discrimination and could not erase its previous illegal conduct").

Sexual and Racial Harassment: Hostile Working Environment Theory:

37. One means by which a Complainant, such as Cristen Harms, may establish a valid claim of harassment on the basis of sex, is by proving:

1) She is a member of a protected class.

2) She was subjected to harassment, i.e. adverse conduct regarded by her as unwelcome and reasonably considered to be undesirable or offensive.

3) The harassment was based upon her protected class status.

4) The harassment affected a term, condition, or privilege of employment;

5) The employer knew or should have known of the harassment and failed to take prompt and appropriate remedial action.

See Vaughn v. Ag Processing, Inc., 459 N.W.2d 627, 632 (Iowa 1990)(requirements for religious harassment case); Lynch v. City of Des Moines, 454 N.W.2d 827, 833, 834 (Iowa 1990)(requirements for sexual harassment case and comments on unwelcomeness); Chauffeurs, Teamsters and Helpers, Local Union No. 238 v. Iowa Civil Rights Commission, 394 N.W.2d 375, 378 (Iowa 1986)(requirements for racial harassment case); Henson v. City of Dundee, 682 F.2d 897, 90305 (llth Cir. 1982).

38. The requirement that a term, condition or privilege of employment be affected by the harassment does not require that the harassment result in "the loss of a tangible job benefit." ' Lynch v. City of Des Moines, 454 N.W.2d 827,834 (Iowa 1990). "Where sexual [or racial) 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 [or racial] harassment affects a condition of employment." See Id.

39. In the event that a Complainant, such as Mike DeVolder, is alleging a sexually or racially hostile working environment, which is directed at persons of a different race or sex, these elements should be modified as follows:

1 ) Employees are subjected to a working environment which is hostile to other employees or customers.

2) The hostility is based upon the protected class status of these other employees or customers.

3) The hostile working environment affected a term, condition, or privilege of employment of the complainant;

4) The employer knew or should have known of the hostile working environment and failed to take prompt and appropriate remedial action.

Cf. Teamsters v. United States, 431 U.S. 324, 358 (1977)('facts necessarily will vary in cases, and the specification . . . of the . . . proof required from [a plaintiff] is not necessarily applicable in every respect to differing factual situations); Clayton v. White Hall School District, 875 F.2d 676, 679-80 (8th Cir. 1989)(employee has right to work in environment free of unlawful discrimination against persons of a different race-harm to employee is lost benefits of interracial associations). When the Commission proves that any employee was the victim of a racially or sexually hostile working environment under either of the sets of elements above, it has established a violation of the Act.

Proper Order and Allocation of Proof:

40. "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 Conclusions of Law Nos. 27-31. In cases of sexual or racial harassment involving the repeated use of sexist or racist epithets, slurs, and jokes; or, in cases of sexual harassment, repeated sexual remarks, verbal, or physical sexual advances, or other obviously sexual conduct, the factual question of intentional discrimination is not at all elusive. Cf. Henson v. City of Dundee, 682 F.2d at 905 n.1 1 (sexual harassment creating offensive environment does not present elusive factual question of intentional discrimination). In this case, all of the evidence in the record was reviewed in order to determine whether Complainants Harms, DeVolder and the Commission had proven, by a preponderance of the evidence, all of the elements required to meet their respective burdens of persuasion. Complainants Harms and DeVolder, and the Commission have met their required burdens of persuasion.

Protected Class Status of Cristen Harms:

41. It is established in the record that Ms. Harms is a female and is protected against discrimination in employment on the basis of sex. Iowa Code § 601A.6.See Finding of Fact No.7. Harassment Based on Harms' Protected Class Status:

42. It is established in the record that the harassment sustained by Ms. Harms was directed toward her because she a female. See Finding of Fact No. 83. See Conclusion of Law No. 40. 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. . . [or];

[2] [S]exual behavior directed at women ... [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.

Robinson v. Jacksonville Shipyards, Inc., 760 F. Supp. 1486, 55 Empl. Prac. Dec. § 40535 at 65759 (M.D. Fla. 1 991).

Complainant Harms was Subjected to Unwelcome Harassment Reasonably Considered to be Undesirable or Offensive:

43. It is established in the record that Cristen Harms did not welcome the conduct of Respondent Mike Friedman and, in fact, complained to her supervisor and co-workers concerning it. See Findings of Fact No. 77, 80, 83-87, 89. The behavior was found to be as offensive to her as it would be to any reasonable, member of her sex. See Finding of Fact No. 83.

44. In considering the proper standard to apply in regard to determining what behavior is reasonably considered to be offensive, the Respondents urged reliance on the standards set forth in Rabidue v. Osceola Refining Co., 805 F.2d 611, 620-21 (6th Cir. 1986). As noted in the dissent, the majority held that "a court considering hostile environment claims should adopt the perspective of the reasonable person's reaction to a similar environment." Rabidue at 626 (Keith, J., dissenting). The majority (and the Respondents on Brief at 32) also would require the consideration of the:

prevailing work environment,' 'the lexicon of obscenity that pervaded the environment both before and after plaintiff's introduction into its environs,'and plaintiff's reasonable expectations upon 'voluntarily' entering that environment..... . The majority suggests through these factors that a woman assumes the risk of working in an abusive, anti-female environment. Moreover, the majority contends that such work environments somehow have an innate right to perpetuation and are not addressed by Title VII.
...

In my view, Title VII's precise purpose is to prevent [sexist and other discriminatory] behavior and attitudes from poisoning the work environment of classes protected under the Act. To condone the majority's notion of the 'prevailing workplace' I would also have to agree that if an employer maintains an anti-semitic workforce and tolerates a workplace in which 'kike' jokes, displays of nazi literature and anti-Jewish conversation 'may abound,' a Jewish employee assumes the risk of working there, and a court must consider such a work environment as I prevailing.' I cannot.

Id.