Iowa Employment Law Blog : Iowa Employment Lawyer & Attorney : Patrick Smith : Bradshaw Fowler Proctor & Fairgrave Law Firm : Des Moines, Central IA Discrimination & Labor Law

On October 30, the Iowa Civil Rights Commission (ICRC)  issued its annual report for 2009.   Once again this year, complaints of employment discrimination constituted the vast majority (85%) of the charges.   The non-employment charges (in the areas of credit, education, housing, and public accommodations) make up the remaining 15% of the charges.

The total number of complaints alleging employment discrimination increased by 13% over the prior year, from 1453 in 2008 to 1644 this year.   The rate of increase in charges filed with the ICRC is comparable to the increase in those filed with the federal EEOC.   Of course, most charges filed with the ICRC that alleged employment discrimination are also cross-filed with the EEOC. 

The category with the largest number of complaints was sex (717), followed by race, (694), disability (562) and age (368).   There were 55 claims of religious discrimination, and six alleging discrimination on the basis of sexual orientation or gender identity.   Despite the publicity relating to the Iowa Supreme Court's decision legalizing marriage among persons of the same sex, there was no increase in charges in the sexual orientation category. 

The largest increase in the type of claim was retaliation.   Retaliation claims increased 30%, from 435 last year to 567 this year.   Although retaliation is a separate category of complaint, charges alleging retaliation are frequently accompanied by a charge of discrimination.

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Much ink has been spilled over the last week analyzing the background and record of Judge Sonia Sotomayor, the nominee to replace Justice David Souter on the United States Supreme Court.    Given that the Supreme Court's docket has included a large number of employment related cases in recent years, a record which is likely to continue given the many changes to the federal employment laws under the Obama administration, how will a Justice Sotomayor potentially affect the jurisprudence in this area?

Judge Sotomayor has served as a judge on the U.S. Court of Appeals for the Second Circuit since 1998, and before that was a U.S. District Court judge in New York.   In one of her most notable cases as a trial court judge, Judge Sotomayor issued an injunction which prevented the Major League Baseball owners from using replacement players during the 1995 season.   

More recently, Judge Sotomayor was part of a three judge panel of the Second Circuit that issued a controversial opinion in the case of Ricci v. DeStefano ,a case which ultimately was appealed to the U.S Supreme Court.    Ricci involves a claim of reverse discrimination by a group of firefighters in New Haven, Connecticut, seventeen of whom are white and one who is Hispanic.    Based upon the results of written and oral promotional exams, only white and Hispanic candidates qualified for promotion to the position of Captain, and only white candidates qualified for promotion to Lieutenant.   Because no black candidate had a high enough score to be considered for the available captain and lieutenant positions, the City's Civil Service Board refused to certify the results of the exam, which prevented the promotions from occurring.  The trial court found that the City's refusal to allow the promotions did not constitute race discrimination, and granted summary judgment to the City (a thorough discussion of the decision is reported at Connecticut Employment Law Blog). 

The three judge panel on which Judge Sotomayor sat issued a short opinion affirming the trial court, but did not analyze any of the substantive issues.    Notably, another judge on the Second Circuit was critical of the panel for failing to address the important constitutional claims at issue in the case, stating that "this perfunctory disposition rests uneasily with the weighty issues presented by this appeal."    At least one critic has opined that Judge Sotomayor's apparent refusal to weigh in on this important issue of civil rights law does not make her a jurist worthy of serious consideration for the Supreme Court. 

Judge Sotomayor certainly has a compelling personal story, and she may have empathy, but it remains to be seen whether she will make positive contributions to the development of employment law.   Stay tuned.

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On April 28, 2009, Governor Culver signed into law Senate File 137, entitled an Act "Providing that Wage Discrimination is an Unfair Employment Practice under the Iowa Civil Rights Act and Providing an Enhanced Remedy.”   This law (available here) amends the Iowa Civil Rights Act to expressly provide that pay differentials among employees are unlawful if they are based upon the employee's age, sex, disability, and several other protected characteristics.   Local media coverage of Governor Culver's signing can be found here.

You might ask, isn't pay discrimination already unlawful under the Iowa Civil Rights Act?   The answer is yes, but this amendment appears to be an attempt to make Iowa law consistent with recently enacted federal legislation governing pay discrimination, known as the "Lilly Ledbetter Fair Pay Act of 2009", which was signed into law in January.  It also incorporates provisions of the federal Equal Pay Act, first enacted in 1963.

The law amends the Iowa Civil Rights Act, Iowa Code Chapter 216, in three significant ways:

First, it makes an unfair or discriminatory employment practice to pay an employee in a protected class at a rate less than the rate paid to other employees who are employed within the same establishment for equal work on jobs, the performance of which requires equal skill, effort, and responsibility, which are performed under similar working conditions.  Protected classes under the law include age, race, creed, color, sex, sexual orientation, gender identity, national origin, religion, or disability.

Second, it provides that an unfair or discriminatory practice occurs not only at the time a discriminatory pay decision is implemented, but also each time wages, benefits, or other compensation is paid that results in whole or in part from the discriminatory decision.

Third, it provides an “enhanced” remedy. That is, an employee is entitled to recover two times the wage differential paid to another employee compared to the complainant for the time period of the discrimination, or three times the differential in the case of willful violations.

Iowa Employer should take note of several importance aspects of this law that create potential risk and exposure to employee lawsuits:

First, these Amendments actually provide greater protection than Federal law, which applies only to employers with fifteen or more employees.  The Iowa Civil Rights Act applies if an employer has four or more employees (although family members are not considered employees for this purpose). 

Second, to determine whether pay is discriminatory, the law allows an employee's pay to be compared not only to others who have similar jobs, but to those whose job functions may be very different , but require "equal skill, effort, and responsibility", or are performed under "similar working conditions".  This provision should cause employers more than ever before to have detailed and accurate job descriptions.  To the extent pay is different among different job categories, employers should develop objective rationales for such differentials.

Third, the fact that each paycheck can constitute a discriminatory practice may lead to litigation over pay decisions that were made years or even decades ago, but which are discovered only recently. 

Finally, the enhanced remedy provides not only additional damages, but also applies to the entire time the employee has been discriminated against.   This is a greater protection than available under the federal law, which limits recovery of back wages to two years. 

Given the enhanced protection provided under the Iowa Civil Rights Act as compared to federal law, employers can expect claims under this law to be filed in State instead of Federal Court.

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