216.15 - COMPLAINT -- HEARING.
216.15 COMPLAINT -- HEARING.
1. 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 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.
2. Any place of public accommodation, employer, labor
organization, or other person who has any employees or members who
refuse or threaten to refuse to comply with the provisions of this
chapter may file with the commission a verified written complaint in
triplicate asking the commission for assistance to obtain their
compliance by conciliation or other remedial action.
3. a. After the filing of a verified complaint, a true copy
shall be served within twenty days on the person against whom the
complaint is filed, except as provided in subsection 4. 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 created by section 10A.801, who shall then
issue a determination of probable cause or no probable cause.
b. For purposes of this chapter, an administrative law judge
issuing a determination of probable cause or no probable cause under
this section is exempt from section 17A.17.
c. 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 practice
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. A
finding of probable cause shall not be introduced into evidence in an
action brought under section 216.16.
d. The commission staff must endeavor to eliminate the
discriminatory or unfair practice by conference, conciliation, and
persuasion for a period of thirty days following the initial
conciliation meeting between the respondent and the commission staff
after a finding of probable cause. After the expiration of thirty
days, the director may order the conciliation conference and
persuasion procedure provided in this section to be bypassed when the
director determines the procedure is unworkable by reason of past
patterns and practices of the respondent, or a statement by the
respondent that the respondent is unwilling to continue with the
conciliation. The director must have the approval of a commissioner
before bypassing the conciliation, conference and persuasion
procedure. Upon the bypassing of conciliation, the director shall
state in writing the reasons for bypassing.
4. a. The commission may permit service of a complaint on a
respondent by regular or electronic mail. If the respondent does not
respond to the service by regular or electronic mail after ninety
days, the commission shall serve the complaint on the respondent by
certified mail within twenty days after the expiration of the
ninety-day response period to service by regular or electronic mail.
b. The commission may also permit a party to file a response
to a complaint, a document, information, or other material, by
electronic mail.
c. The commission may issue a notice, determination, order,
subpoena, request, correspondence, or any other document issued by
the commission, by electronic mail.
5. The members of the commission and its staff shall not disclose
the filing of a complaint, the information gathered during the
investigation, or the endeavors to eliminate such discriminatory or
unfair practice by mediation, conference, conciliation, and
persuasion, unless such disclosure is made in connection with the
conduct of such investigation.
6. 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 provided for in
subsection 3 has expired without agreement, the director with the
approval of a commissioner, shall issue and cause to be served a
written notice specifying the charges 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, hereafter referred to as the administrative law judge, and
at a time and place to be specified in the notice.
7. The case in support of such complaint shall be presented at
the hearing by one of the commission's attorneys or agents. The
investigating official shall not participate in the hearing except as
a witness nor participate in the deliberations of the commission in
such case.
8. The hearing shall be conducted in accordance with the
provisions of chapter 17A for contested cases. The burden of proof
in such a hearing shall be on the commission.
9. 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 this
chapter. A copy of the order shall be delivered to the respondent,
the complainant, and to any other public officers and persons as the
commission deems proper.
a. For the purposes of this subsection and pursuant to the
provisions of this chapter "remedial action" includes but is not
limited to the following:
(1) Hiring, reinstatement or upgrading of employees with or
without pay. Interim earned income and unemployment compensation
shall operate to reduce the pay otherwise allowable.
(2) Admission or restoration of individuals to a labor
organization, admission to or participation in a guidance program,
apprenticeship training program, on-the-job training program or other
occupational training or retraining program, with the utilization of
objective criteria in the admission of individuals to such programs.
(3) Admission of individuals to a public accommodation or an
educational institution.
(4) Sale, exchange, lease, rental, assignment or sublease of real
property to an individual.
(5) Extension to all individuals of the full and equal enjoyment
of the advantages, facilities, privileges, and services of the
respondent denied to the complainant because of the discriminatory or
unfair practice.
(6) Reporting as to the manner of compliance.
(7) Posting notices in conspicuous places in the respondent's
place of business in form prescribed by the commission and inclusion
of notices in advertising material.
(8) 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.
(9) For an unfair or discriminatory practice relating to wage
discrimination pursuant to section 216.6A, 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 court
costs, reasonable attorney fees, and either of the following:
(a) An amount equal to two times the wage differential paid to
another employee compared to the complainant for the period of time
for which the complainant has been discriminated against.
(b) In instances of willful violation, an amount equal to three
times the wage differential paid to another employee as compared to
the complainant for the period of time for which the complainant has
been discriminated against.
b. In addition to the remedies provided in the preceding
provisions of this subsection, the commission may issue an order
requiring the respondent to cease and desist from the discriminatory
or unfair practice and to take such affirmative action as in the
judgment of the commission will carry out the purposes of this
chapter as follows:
(1) In the case of a respondent operating by virtue of a license
issued by the state or a political subdivision or agency, if the
commission, upon notice to the respondent with an opportunity to be
heard, determines that the respondent has engaged in a discriminatory
or unfair practice and that the practice was authorized, requested,
commanded, performed or knowingly or recklessly tolerated by the
board of directors of the respondent or by an officer or executive
agent acting within the scope of the officer's or agent's employment,
the commission shall so certify to the licensing agency. Unless the
commission finding of a discriminatory or unfair practice is reversed
in the course of judicial review, the finding of discrimination is
binding on the licensing agency. If a certification is made pursuant
to this subsection, the licensing agency may initiate licensee
disciplinary procedures.
(2) In the case of a respondent who is found by the commission to
have engaged in a discriminatory or unfair practice in the course of
performing under a contract or subcontract with the state or
political subdivision or agency, if the practice was authorized,
requested, commanded, performed, or knowingly or recklessly tolerated
by the board of directors of the respondent or by an officer or
executive agent acting within the scope of the officer's or agent's
employment, the commission shall so certify to the contracting
agency. Unless the commission's finding of a discriminatory or
unfair practice is reversed in the course of judicial review, the
finding of discrimination is binding on the contracting agency.
(3) Upon receiving a certification made under this subsection, a
contracting agency may take appropriate action to terminate a
contract or portion thereof previously entered into with the
respondent, either absolutely or on condition that the respondent
carry out a program of compliance with the provisions of this
chapter; and assist the state and all political subdivisions and
agencies thereof to refrain from entering into further contracts.
c. The election of an affirmative order under paragraph
"b" of this subsection shall not bar the election of affirmative
remedies provided in paragraph "a" of this subsection.
10. a. The terms of a conciliation or mediation agreement
reached with the respondent may require the respondent to refrain in
the future from committing discriminatory or unfair practices of the
type stated in the agreement, to take remedial action as in the
judgment of the commission will carry out the purposes of this
chapter, and to consent to the entry in an appropriate district court
of a consent decree embodying the terms of the conciliation or
mediation agreement. Violation of such a consent decree may be
punished as contempt by the court in which it is filed, upon a
showing by the commission of the violation at any time within six
months of its occurrence. At any time in its discretion, the
commission may investigate whether the terms of the agreement are
being complied with by the respondent.
b. Upon a finding that the terms of the conciliation or
mediation agreement are not being complied with by the respondent,
the commission shall take appropriate action to assure compliance.
11. If, 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 on the complainant and the
respondent.
12. The commission shall establish rules to govern, expedite, and
effectuate the procedures established by this chapter and its own
actions thereunder.
13. Except as provided in section 614.8, a claim under this
chapter shall not be maintained unless a complaint is filed with the
commission within three hundred days after the alleged discriminatory
or unfair practice occurred.
14. The commission or a party to a complaint may request
mediation of the complaint at any time during the commission's
processing of the complaint. If the complainant and respondent
participate in mediation, any mediation agreement may be enforced
pursuant to this section. Mediation may be discontinued at the
request of any party or the commission. Section History: Early Form
[C66, 71, § 105A.9; C73, § 601A.9; C75, 77, § 601A.14; C79, 81, §
601A.15] Section History: Recent Form
88 Acts, ch 1109, §27, 28
C93, § 216.15
95 Acts, ch 129, §8--11; 98 Acts, ch 1202, §36, 46; 2005 Acts, ch
23, §1--3; 2007 Acts, ch 110, §1; 2008 Acts, ch 1028, §1; 2009 Acts,
ch 96, §3; 2009 Acts, ch 178, §25, 26
Referred to in § 216.15A, 216.16, 216.16A, 216.17 Footnotes
2007 amendment to subsection 12 applies to all complaints, claims,
and actions arising out of an alleged death, loss, or injury
occurring on or after July 1, 2007; 2007 Acts, ch 110, §6