Two local branches of the NAACP recently issued a report criticizing the Iowa Civil Rights Commission because of the low percentage of “probable cause” findings in discrimination complaints filed with the agency.   Although the report was issued December 31, it was recently publicized in a series of three stories appearing over the course of one week in the Des Moines Register (February 16, February 20, and February 21). 

The upshot of the report is that the ICRC determined there was “probable cause” discrimination occurred in only 1.5% of the non-housing cases filed during the 15 year period from 1996 to 2001.   The vast majority of non-housing cases involve claims of employment discrimination.    The NAACP claimed Iowa’s “probable cause” rate was much lower than neighboring states of Nebraska (6.4%), Minnesota (8.2%) and Illinois (15.7%)(the full text of the report can be found here).    The NAACP said their study revealed a “systematic dismissal of civil rights complaints at an alarming rate”.

The report was predictably followed by threats of litigation, mea culpas, and finger pointing.   ICRC Executive Director Beth Townsend seemed to agree the probable cause rate was too low, but blamed the huge backlog of cases. The Governor blamed previous administrations for allowing a culture to develop at the ICRC where staffers were not focused on their work. 

Unfortunately, both the NAACP’s criticism, and the defenses by government officials, miss the mark.    While there certainly may be problems at the ICRC, one of them is not a shortage of discrimination claims being pursued against Iowa employers.    Nor is there evidence that meritorious claims are being dismissed.  What the report fails to accurately present is the impact of what is known as the “right to sue” letter.    Unlike many states, the Iowa Civil Rights Act allows a complainant to request the right to sue 60 days after filing a complaint, regardless of the status of the agency’s investigation.    Once the “right to sue” is issued, the ICRC closes the case, and the complainant has the right to file a lawsuit in court.   A complainant with a strong case typically would prefer to pursue the case in court, because of the right to a jury trial, and the ability to recover attorney’s fees.

Thus, the reason the ICRC issues so few findings of probable cause has very little to do with the agency itself. Rather, it is because the best cases have already been taken out of the system and are being pursued in court.    What the ICRC is left with are those cases where the complainant is not able to find an attorney to take on the claim, usually because it lacks merit or there is little economic harm.   This represents not a failure of the system, but is precisely how it was designed. 

A more accurate presentation of the impact of discrimination claims would be to treat the issuance of a right to sue letter the same as a finding of probable cause.    Using this approach, the statistics presented in the NAACP report from 2006-2011 show that, on average, 11.8% of claims result in either a probable cause finding or a right to sue.  Rather than the lowest, this is actually the second highest rate among neighboring states.     

The NAACP report appears to be more of an effort to score political points than to address the real issues impacting the enforcement of the discrimination laws.    I suspect most employees and employers would agree that the existing hybrid system of public and private enforcement is more effective than charging a government agency with pursuing all the claims.   If the ICRC cannot handle its existing workload, what would happen if hundreds of additional cases that are now pursued in court would remain within its jurisdiction?