Discrimination - Civil Litigation - State of Iowa

By James C. Larew, Attorney at Law

It is a violation of the Code of Iowa to discriminate on the basis of age, race, creed, color, sex, national origin, religion, or disability.

Any person claiming to be aggrieved by a discriminatory or unfair practice may, in person or by an attorney, make, sign, and file with the Civil Rights Commission a verified, written complaint which shall state the name and address of the person, employer, employment agency, or labor organization alleged to have committed the discriminatory or unfair practice of which complained, shall set forth the particulars thereof, and shall contain such other information as may be required by the Commission. The Commission, a commissioner, or the attorney general may in like manner make, sign, and file such complaint.

After the filing of a verified complaint, a true copy shall be served within twenty (20) days by certified mail on the person against whom the complaint is filed. An authorized member of the Commission staff shall make a prompt investigation and shall issue a recommendation to an administrative law judge employed either by the Commission or by the division of administrative hearings, who shall then issue a determination of probable cause or no probable cause.

If the administrative law judge concurs with the investigating official that probable cause exists regarding the allegations of the complaint, the staff of the Commission shall promptly endeavor to eliminate the discriminatory or unfair practices by conference, conciliation, and persuasion. If the administrative law judge finds that no probable cause exists, the administrative law judge shall issue a final order dismissing the complaint and shall promptly mail a copy to the complainant and to the respondent by certified mail.

When the director is satisfied that further endeavor to settle a complaint by conference, conciliation, and persuasion is unworkable and should be bypassed, and the thirty-day period has expired without agreement, the director with the approval of a commissioner, shall issue and cause to be served a written notice specifying the charged in the complaint as they may have been amended and the reasons for bypassing conciliation, if the conciliation is bypassed, and requiring the respondent to answer the charges of the complaint at a hearing before the Commission, a commissioner, or a person designated by the Commission to conduct the hearing, and at a time and place to be specified in the notice.

The case in support of such complaint shall be presented at the hearing by one of the Commission’s attorneys or agents. The burden of proof in such a hearing shall be one the Commission.

If upon taking into consideration all of the evidence at a hearing, the Commission determines that the respondent has engaged in a discriminatory or unfair practice, the Commission shall state its findings of fact and conclusions of law and shall issue an order requiring the respondent to cease and desist from the discriminatory or unfair practice and to take the necessary remedial action as in the judgment of the Commission will carry out the purposes of the anti-discrimination laws.

The remedies available in this action before the Commission include, but are not limited to, hiring, reinstatement or upgrading of employees; admission or restoration of individuals to a public accommodation or an educational institution; sale, exchange, lease, rental, assignment or sublease of real property to an individual; extension to all individuals of the full and equal enjoyment of the advantages, facilities, privileges, and services the respondent denied to the complainant because of the discriminatory practice; payment to the complainant of damages for an injury caused by the discriminatory or unfair practice which damages shall include but are not limited to actual damages, court costs and reasonable attorney fees.

If, however, upon taking into consideration all of the evidence at a hearing, the Commission finds that a respondent has not engaged in any such discriminatory or unfair practice, the Commission shall issue an order denying relief and stating the findings of fact and conclusions of the Commission, and shall cause a copy of the order dismissing the complaint to be served by certified mail on the complainant and the respondent.

A claim under the Civil Rights Commission shall not be maintained unless a complaint is filed with the Commission within one hundred eighty (180) days after the alleged discriminatory or unfair practice occurred.

A person claiming to be aggrieved by an unfair or discriminatory practice must initially seek an administrative relief by filing a complaint with the Commission. A complainant after the proper filing of a complaint with the Commission, may subsequently commence an action for relief in the district court if all of the following conditions have been satisfied:

• The complainant has timely filed the complaint with the Commission as provided in section 216.15, subsection 12; and
• The complaint has been on file with the Commission for at least sixty (60) days and the Commission has issued a release to the complainant pursuant to section 216.16, subsection 2.

Upon a request by the complainant, and after the expiration of the sixty (60) days from the timely filing of a complaint with the Commission, the Commission shall issue to the complainant a release stating that the complainant has a right to commence an action in the district court. A release under this subsection shall not be issued if a finding of no probable cause has been made on the complaint by the administrative law judge charged with that duty, if a conciliation agreement has been executed, if the commission has served notice upon the respondent, or the complaint is closed as an administrative closure and two years have elapsed since the issuance date of the closure.

A civil action in the district court is barred unless commenced within ninety (90) days after issuance by the Commission of a release. If a complainant obtains a release from the Commission, the Commission is barred from further action on that complaint.

Venue for a civil action shall be in the county in which the respondent resides or has its principal place of business, or in the county in which the alleged unfair or discriminatory practice occurred.

In a civil action, the district court may grant any of the relief that the complainants could have received from the Commission itself (listed above). The district court may also award the respondent reasonable attorney fees and court costs when the court finds that the complainant’s action was frivolous.

For further information, please see Iowa Code §§ 216.15, 216.15A, 216.16, 216.16A, 216.17, 216.17A (available online at www.legis.state.ia.us/iacode/2003/titles.html).

Federal

The Equal Employment Opportunity Commission (EEOC) is responsible for all instances of race, sex, age, disability, national origin, pregnancy, and religion discrimination in the workplace.

Any individual who believes that his or her employment rights have been violated may file a charge of discrimination with EEOC.

In addition, an individual, organization, or agency may file a charge on behalf of another person in order to protect the aggrieved person's identity.

All laws enforced by EEOC, except the Equal Pay Act, require filing a charge with EEOC before a private lawsuit may be filed in court. There are strict time limits within which charges must be filed:

• A charge must be filed with EEOC within 180 days from the date of the alleged violation, in order to protect the charging party's rights.
• This 180-day filing deadline is extended to 300 days if the charge also is covered by a state or local anti-discrimination law. For ADEA charges, only state laws extend the filing limit to 300 days.
• These time limits do not apply to claims under the Equal Pay Act, because under that Act persons do not have to first file a charge with EEOC in order to have the right to go to court. However, since many EPA claims also raise Title VII sex discrimination issues, it may be advisable to file charges under both laws within the time limits indicated.

Many states and localities have anti-discrimination laws and agencies responsible for enforcing those laws. EEOC refers to these agencies as "Fair Employment Practices Agencies (FEPAs)." Through the use of "work sharing agreements," EEOC and the FEPAs avoid duplication of effort while at the same time ensuring that a charging party's rights are protected under both federal and state law.

• If a charge is filed with a FEPA and is also covered by federal law, the FEPA "dual files" the charge with EEOC to protect federal rights. The charge usually will be retained by the FEPA for handling.
• If a charge is filed with EEOC and also is covered by state or local law, EEOC "dual files" the charge with the state or local FEPA, but ordinarily retains the charge for handling.

The employer is notified that the charge has been filed. From this point there are a number of ways a charge may be handled:

• A charge may be assigned for priority investigation if the initial facts appear to support a violation of law. When the evidence is less strong, the charge may be assigned for follow up investigation to determine whether it is likely that a violation has occurred.
• EEOC can seek to settle a charge at any stage of the investigation if the charging party and the employer express an interest in doing so. If settlement efforts are not successful, the investigation continues.
• In investigating a charge, EEOC may make written requests for information, interview people, review documents, and, as needed, visit the facility where the alleged discrimination occurred. When the investigation is complete, EEOC will discuss the evidence with the charging party or employer, as appropriate.
• The charge may be selected for EEOC's mediation program if both the charging party and the employer express an interest in this option. Mediation is offered as an alternative to a lengthy investigation. Participation in the mediation program is confidential, voluntary, and requires consent from both charging party and employer. If mediation is unsuccessful, the charge is returned for investigation.
• A charge may be dismissed at any point if, in the agency's best judgment, further investigation will not establish a violation of the law. A charge may be dismissed at the time it is filed, if an initial in-depth interview does not produce evidence to support the claim. When a charge is dismissed, a notice is issued in accordance with the law which gives the charging party 90 days in which to file a lawsuit on his or her own behalf.

After investigation of the charge:

• If the evidence obtained in an investigation does not establish that discrimination occurred, this will be explained to the charging party. A required notice is then issued, closing the case and giving the charging party 90 days in which to file a lawsuit on his or her own behalf.
• If the evidence establishes that discrimination has occurred, the employer and the charging party will be informed of this in a letter of determination that explains the finding. EEOC will then attempt conciliation with the employer to develop a remedy for the discrimination.
• If the case is successfully conciliated, or if a case has earlier been successfully mediated or settled, neither EEOC nor the charging party may go to court unless the conciliation, mediation, or settlement agreement is not honored.
• If EEOC is unable to successfully conciliate the case, the agency will decide whether to bring suit in federal court. If EEOC decides not to sue, it will issue a notice closing the case and giving the charging party 90 days in which to file a lawsuit on his or her own behalf. In Title VII and ADA cases against state or local governments, the Department of Justice takes these actions.

A charging party may file a lawsuit in federal or state court within 90 days after receiving a notice of a "right to sue" from EEOC, as stated above. Under Title VII and the ADA, a charging party also can request a notice of "right to sue" from EEOC 180 days after the charge was first filed with the Commission, and may then bring suit within 90 days after receiving this notice. Under the ADEA, a suit may be filed at any time 60 days after filing a charge with EEOC, but not later than 90 days after EEOC gives notice that it has completed action on the charge.

Under the EPA, a lawsuit must be filed within two years (three years for willful violations) of the discriminatory act, which in most cases is payment of a discriminatory lower wage.

The "relief" or remedies available for employment discrimination, whether caused by intentional acts or by practices that have a discriminatory effect, may include:

• back pay,
• hiring,
• promotion,
• reinstatement,
• front pay,
• reasonable accommodation, or
• other actions that will make an individual "whole" (in the condition s/he would have been but for the discrimination).

Remedies also may include payment of:

• attorneys' fees,
• expert witness fees, and
• court costs.

Under most EEOC-enforced laws, compensatory and punitive damages also may be available where intentional discrimination is found. Damages may be available to compensate for actual monetary losses, for future monetary losses, and for mental anguish and inconvenience. Punitive damages also may be available if an employer acted with malice or reckless indifference. Punitive damages are not available against the federal, state or local governments.

In cases concerning reasonable accommodation under the ADA, compensatory or punitive damages may not be awarded to the charging party if an employer can demonstrate that "good faith" efforts were made to provide reasonable accommodation.

An employer may be required to post notices to all employees addressing the violations of a specific charge and advising them of their rights under the laws EEOC enforces and their right to be free from retaliation. Such notices must be accessible, as needed, to persons with visual or other disabilities that affect reading.

The employer also may be required to take corrective or preventive actions to cure the source of the identified discrimination and minimize the chance of its recurrence, as well as discontinue the specific discriminatory practices involved in the case.

For further information on the EEOC and its enforcement procedures, please go to www.eeoc.gov.

About the Author:

James C. Larew, Attorney at Law
Iowa Civil Rights Lawyer
Phone: (319) 337-7079
Email: larewlaw@aol.com
Website: www.larewlaw.com