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Basic Iowa Civil Rights Act
Coverage, Procedure and Remedies

Contents

Thumbnail Sketch

You can get a thumbnail of Iowa's coverage by looking at the "areas" and "bases" that are covered:

Area
This describes an area of activity or services in which discrimination is prohibited. For example, if a complaint is brought alleging race discrimination in an employment practice we say that this falls within the "area" of employment. The five areas covered by the Iowa Act are employment, housing, public accommodations, education, and credit.
Basis
A personal characteristic which is protected from some forms of discrimination is a "basis". Again if a complaint of employment discrimination is brought alleging that race was the reason for the complainant being terminated then the charge is said be be on the "basis" of race. The protected bases of discrimination can vary according the area alleged. The protected bases of discrimination in Iowa law are age [only for employment and credit], sex, race, color, creed, national origin, religion, and disability. Also familial status, the presence of children in the household, is protected in the areas of credit and housing. Marital status is protected in the area of credit. To use the fact that someone opposed a discriminatory practice or that they filed a complaint as a reason to discriminate is discrimination on the basis of "retaliation".

Filing Requirements

Anyone seeking to allege discrimination in violation of the Iowa Civil Rights Act must first file a complaint of discrimination with the Commission. Iowa Code sec. 216.16(1). The Iowa Civil Rights Act pre-empts other causes of action and thus if you intend to sue on a case which requires proof of discrimination as one of its elements you must file a charge with the Commission. E.g. Greenland v. Fairtron Corp., 500 N.W.2d 36, 38 (Iowa 1993).

The commission rules specify the requirements for a complaint's form. Basically it must be in writing, set forth identifying information for the parties, and generally describe the actions complained of. Technical defects can be cured after filing under rule 161 IAC 3.4(3). Under that rule amendments to cure technical defects relate back to the original filing of the charge. The Iowa Supreme Court has recognized that there must be a good deal of flexibility in what constitutes a sufficient charge because they are often drafted up by the citizens without the aid of an attorney. Iron Workers v. Hart, 191 N.W.2d 758 (Iowa 1971). Although the complaint must be "verified", Iowa Code sec. 21615(1), verification can occur without a notary if the complainant certifies "under penalty of perjury and pursuant to the laws of the State of Iowa and of the United States that the preceeding is true and correct." Iowa Code sec. 622.1

Filing can occur by various methods which are described in rule 3.5. These include by mail, by FAX, by delivery service, and in person. Under rule 3.5(10) the date of filing of a complaint is always the date of receipt.

The applicable statutory provision are Iowa Code sec.'s 216.5(2)(power to process charges); 216.15(1) (describing filing briefly).

Contents

Limitation Period

A complaint alleging discrimination must be received by the Commission within 180 days after the latest incident of alleged discrimination. 161 IAC 3.5(10)(filed upon receipt); Iowa Code sec. 21615(12)(180 days). Unless proven to be in error the date a complaint is filed shall in no event be deemed to be later than the date shown on the dated Commission receipt stamp. 161 IAC 3.5(10)(c) Of course, in federal employment cases under Title VII the time limit is 300 days but only if filing is made first with the Commission (or the EEOC holds the case in "suspended animation"). Thus even if your employment case is between 180 and 300 days it is still easiest to file with ICRC even though you are outside the state time limit. You can, however, file directly with the EEOC and you will still get the 300 day limit once EEOC cross files with the Iowa Commission.

This filing period is not jurisdictional and is subject to waiver, estoppel and may be tolled for equitable reason. 161 IAC 3.3; Annear v. State, 419 N.W.2d 377, 379-80 (Iowa 1988). In a tolling situation the "question then becomes when would [a plaintiff] as an average layman perceive that discrimination was occuring. The 180 day period runs from that date." Annear, 419 N.W.2d at 380. Note that although Annear uses the phrase "continuing violation" this is a misnomer - the case is clearly one involving equitable tolling.

A "continuing violation" may be challenged even though only some of the events in the violation fall within the filing period. 161 IAC 3.3. For example, in a harassment case only the latest incident of harassment needs to be within the filing period, Lynch v. City of Des Moines, 454 N.W.2d 827, 832 (Iowa 1990) or if there are a series of failures to promote this generally is viewed as a continuing violation and only the most recent failure to promote needs to timely. Annear v. State, 419 N.W.2d 377, 379-80 (Iowa 1988); Hy Vee v. Iowa Civil Rights Commission, 453 N.W.2d 512, 528 (Iowa 1990). Also if the respondent maintains a discriminatory policy then that policy can be challenged and damages can be obtained even if the only damage causing events which result from the policy took place more than 180 days before the filing of the charge. Hy Vee v. Iowa Civil Rights Commission, 453 N.W.2d 512, 529-30 (Iowa 1990). The Hy Vee case has useful and extended discussions of both forms of continuing violation since both were in issue in that case.

Contents

Cross Filing

The Commission has a work sharing agreement with the EEOC and HUD. The Commission has no cross-filing agreement with local Iowa Commissions. No local commission is, at this time, a designated referral or deferral agency for the Iowa Civil Rights Commission. As a practical matter this means:

  • EEOC - If you file with the ICRC the Commission will cross file with EEOC. Even if the charge is outside Iowa's 180 day limitation period the Commission is able to cross file with EEOC. In fact, in such a situation it is necessary to file with the Iowa Commission before you can avail yourself of the longer federal statute of limitation. Although Title VII gives the Commission a 60 day exclusive processing right the Commission's workshare agreement provides that in certain cases the Commission automatically waives exclusive processing. One class of cases where exclusive processing is waived is when the charge is received outside the 180 day filing period. If you file a late charge with the Commission the exclusive processing is automatically waived and no further action need be taken by ICRC in order to waive exclusive processing. See Worthington v. Union Pacific Railroad, 948 F.2d 477, 57 FEP 382 (8th Cir. 1991) (Waiver of 706 agency's 60 day exclusive processing contained in worksharing agreement was self executing. The agency was not required to send a notice of waiver of processing. Filing with state 706 agency with such a waiver in the worksharing agreement constituted filing with the EEOC.) Also under the workshare agreement the Commission is appointed an agent for the EEOC for the receipt of charges. Thus technically as soon as the ICRC receives a complaint which seeks to be cross-filed the case is filed with the EEOC.
  • HUD - File with the ICRC and the Commission will cross file with HUD.
  • Locals - As a matter of courtesy and efficiency local commissions routinely forward charges filed with them to the Iowa Civil Rights Commission. Since there are no official local referral agencies for the Iowa Commission such charges are deemed filed with the Commission when they are received by the Iowa Civil Rights Commission and not before. Thus if you are close to the time period it is never a bad idea to forward the charge to the state Commission directly.

Contents

Coverage - Employment

Under the Iowa Civil Rights Act it is illegal for any "person" to discriminate in employment against any employee or any applicant for employment because of the employee or applicant's age, race, creed, color, sex, national origin, religion or disability. Iowa Code sec. 216.6(1)(a). In using the term "person" the text of the Iowa Act differs from Title VII which uses "employer or agent". Whether this difference means that supervisors and co-employees are covered is still an open question in Iowa. Other paragraphs cover advertisement by employers and referral agencies, sec. 216.6(1)(c) and discrimination by labor unions. sec. 216.6(1)(b).

The most commonly invoked exception in the Iowa law is for employers who "regularly employ" fewer than four employees. Iowa Code sec. 216.6(6)(a). No court has ruled on how part-time and seasonal employees are counted. The federal law is of no help since the federal statutes specifically describe how to figure whether an employee should be counted.

The other exceptions are:

  • The employment of individuals for work within the home of the employer if the employer or members of the employer's family reside there during such employment.
  • The employment of individuals to render personal service to the person of the employer or members of the employer's family.
  • Qualifications imposed by a bona fide religious institution when such qualifications are related to a bona fide religious purpose.

Iowa Code sec. 216.6(6)(b)-(d)

Age discrimination against those under 18 is not covered. Iowa Code sec. 216.6(3) Also age discrimination in apprentice programs against those over 45 is not covered. Iowa Code sec. 216.6(5).

The Iowa Act specifically states that a person with aids AIDS or who has tested HIV positive has a protected disability. Iowa Code sec. 216.2(5). (Note this is in the definition section and so this protection also extends to areas like housing and accomodations). In keeping with this specific treatment the employment section of the law specifically outlaws the giving of AIDS test as a condition of employment. This provision is not necessary with the ADA in effect but it does remove any doubt which might arise at the "post-offer" phase. The section also makes illegal any agreement consenting to such a test in exchange for some benefit. AIDS testing is allowed under this provision under certain narrow circumstances if state health officials declare that a person working a specific occupation poses a "significant risk" or transmission of AIDS. Of course, even if this is done any pre-offer testing would run afoul of the ADA.

Iowa law has specific protections for pregnant women not found in the federal anti-discrimination laws. Iowa Code sec. 216.6(2). Basically the law prohibits termination of someone because of pregnancy, Iowa Code sec. 216.6(2)(d), requires treatment of pregnancy like any other "temporary disability" under an employer's insurance and benefit plan, Iowa Code sec. 216.6(2)(b) and also requires a minimum eight week leave of abscence if there is not sufficient leave provided by the employer's plan. Such a leave is not a maternity leave, rather, it is for the period for which the employee is disabled by "pregnancy, childbirth or related medical conditions". Iowa Code sec. 216.6(2)(e). It is an open issue whether this provision means that the employer must guarantee a certain level of pay and benefits to an employee disabled by pregnancy. For example, it has not been settled that a woman who needs four weeks to recover from child birth must be guaranteed the same pay level or seniority upon her return even if the employer does not make such a guarantee for employees disabled by other conditions.

The only employment regulations of the Iowa Civil Rights Commission which are regularly cited are those pertaining to disability discrimination. The basic requirement of Iowa disability law is that the employer must make reasonable accommodation, Foods Inc. v. Iowa Civil Rights Commission, 318 N.W.2d 162 (Iowa 1982) , although this has been interpreted to mean that the employer need not incur more than a de minimus cost. Smith v. ADM Feed Co., 456 N.W.2d 378 (Iowa 1990). Iowa's disability law is no where near this simple and one should browse my FTP site for further discussion.

Iowa has also recognized harassment as a form of discrimination. Chauffeurs, Teamsters, & Helpers Local No. 238 v. Iowa Civil Rights Commission, 394 N.W.2d 375 (Iowa 1986); Lynch v. City of Des Moines, 454 N.W.2d 827, 832 (Iowa 1990).

Contents

Coverage - Public Accommodation

Discrimination by "public accomodations" is prohibited by the Iowa Civil Rights Act. A public accomodation is defined as "each and every place, establishment, or facility of whatever kind, nature, or class that caters or offers services, facilities, or goods for a fee or charge to nonmembers of any organization or association utilizing the place, establishment, or facility". Iowa Code sec. 216.2(12) Linguistically, this is a particularly broad definition. The Iowa Commission, for example, has held than insurance is a public accomodation. This holding was affirmed in district court and no further appeal was taken. On the other hand, the Iowa Supreme Court on a 5-4 vote has found that membership organizations are not covered by the Act because membership lacks a "spatial aspect." United States Jaycess v. Iowa Civil Rights Commission, 427 N.W.2d 450 (Iowa 1988). The real issue of Jaycees is just how far the ruling should be taken. In one reading, the ruling appears to say that unless the service in question is rendered "at a place" which is open to the public then it does not fall within the public accommodation statute. Such a reading would place beyond the Act services such as any package delivery services, answering services, paging services, internet providers, credit card companies, catalog orders, subscriptions to publications etc.. Fortunately most of these services would be regulated by federal law. An alternative reading of Jaycees is simply that the Court was holding that the failure of "membership" per se to look like any other typical service means it was not within the type of services which are intended to be covered. Basically, Jaycees would be limited to its holding that membership in organizations is not covered. It is this sort of reading the district court followed in the Prudentialcase when it found that insurance is a public accomodation and rejected the argument that the product must have the "spatial dimension" discussed in Jaycees.

The statutory exceptions are for private clubs, Iowa Code sec. 216.2(12), religious institutions acting pursuant to religious doctrine, sec. 216.7(2)(a), and rooming houses for " transient individuals" if the rooming house has less than six rooms and is owner occupied. sec. 216.7(2)(b)

One oddity in the statute is the use of "nonmembers". Formerly this had been "general public" and then "public". This was changed from "pubic" to "nonmembers" in 1984. In 1984 an Iowa fraternal organization erroneously informed a Black man that under the organization's guidelines he would be barred from the bowling league award ceremony because of his race. The Iowa Legislature reacted. Unfortunately, the draftsmanship was not as good as the intentions. As originally drafted the "nonmembers" language appeared only in the private club exemption. This exemption provides that if the private club offers services to nonmembers then it is deemed to be a public accomodation during the period that such nonmembers enjoy these services. Iowa Code sec. 216.2(12). Thus the fraternal organization would be covered for its bowling awards banquet. Interestingly, private country clubs which allow guests are covered so long as any guests are on the premises. 1984 Op. Att'y Gen. 152. Had the nonmembers language stayed put in the private club exception all would make total sense. Unfortunately in drafting this language got a wunderlust and ended up replacing "public" wherever it occured. Thus to be covered in the first place a business must offer services to "nonmembers" of any organization or association utilizing the place, establishment, or facility. But what if its just a soda fountain and there is no membership organization utilizing the place? Is it always covered under the theory that anyone is a "nonmember" of a non-existent organization or is it never covered because if no one is a member then no one can be dubbed a"non-member"? In light of such an ambiguity some guidance can be gained from the generally very broad language used and the explanation which accompanied the "nonmembers" bill. In the bill's explanation section it states that the amendment "expands the definition of public accommodation." 1984 Study Bill 782. It seems best to read "nonmembers" in the coverage portion of the subsection to be at least as broad as "public".

Whatever this definition might mean otherwise it is clear that public bodies are covered. The definition specifically "includes each state and local government unit or tax-supported district of whatever kind, nature, or class that offers services, facilities, benefits, grants or goods to the public". Iowa Code sec. 216.2(12). In a 1982 opinion the Attorney General of Iowa stated that prisons are not covered as "public accommodations" since they do not "offer services" to the public. 1982 Op. Att'y Gen. May 24, 1982. Obviously the idea of "offering" a "service" implies that the person has a choice. A prisoner does not. Besides prisons are not "offered" to the "public" but rather only to those people convicted of crimes.

The people who may not discriminate are the "owner, lessee, sublessee, proprietor, manager, or superintendent of any public accommodation" and even more broadly "any agent or employee" of whoever is running the public accommodation. Iowa Code sec. 216.7. So both the bar owner and a bar tender, for example, could be liable for refusal to serve someone because of their race. Finally, discrimination based on the following factors is illegal: race, creed, color, sex, national origin, religion or disability. sec. 216.7. Note that age is not listed and that age-based discrimination at public accomodation is legal.

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Coverage - Housing

There are not as many coverage issues for housing as the other two. The statute states that discrimination by a "person" is covered but then goes on to list several specifics anyway including owners, brokers, attorneys, auctioneers, and agents. Iowa Code sec. 216.8. The discrimination which is covered includes:

  • Refusal to sell Iowa Code sec. 216.8(1)
  • Unwise make unavailable real property. Iowa Code sec. 216.8(1)
  • Discrimination in the terms, conditions or privileges of the sale or rental Iowa Codesec. 216.8(2)
  • Discriminatory advertisement Iowa Code sec. 216.8(3)
  • Blockbusting Iowa Code sec. 218.8A(1) (basically this means trying to scare people into selling by saying that the racial characteristics of the neighborhood are changing).
  • Indicating that property is not available when it is. Iowa Code sec. 218.8A(2)
  • Failing to make reasonable accommodation for those with a disability. Iowa Code sec. 218.8A(3)
  • Threats or interference with housing rights Iowa Code sec. 216.11A

A special note needs to be made on reasonable accomodation. The tenant can request to alter the premises but they must be willing to pay for the alterations. Also the tenant must be willing to pay to restore the unit to its original condition if the alteration is one not likely to be needed by anyone else and which might interfere with a subsequent tenant's use. Reasonable accommodation must also be made in rules. For example, a no pets rule must be altered for assistive animals such as guide dogs. Iowa Code sec. 216.8A(3).

Discrimination based on the following factors is illegal: race, color, creed, sex, religion, national origin, disability, or familial status . sec. 216.8. Note that age is not listed and that age-based discrimination at public accomodation is legal.Age is not a covered basis of discrimination in housing. This means a landlord may discriminate based on age. But a landlord may not discriminate against households with children in them. A "no kids" policy is patently illegal unless the landlord falls within the elderly housing exemption. Iowa Code sec. 216.12(4).

Finally, the Iowa Civil Rights Act has different exemptions than Title VIII. Generally, the coverage of the Iowa statute is broader. Broader coverage also results from the fact that in Iowa discrimination with respect to "real property" is covered while under federal law only discrimnation regarding "dwellings" is covered. The Iowa statute covers commercial property and not just living space.

Contents

Right to Sue

After a complaint has been on file for 60 days the complainant may request a right-to-sue letter from the Commission. Iowa Code sec. 216.16(1)(b); 161 IAC 3.10(4). The Iowa Civil Rights Act pre-empts other causes of action and thus if you intend to sue on a case which requires proof of discrimination as one of its elements you must file a charge with the Commission and obtain a right-to-sue letter. E.g. Greenland v. Fairtron Corp., 500 N.W.2d 36, 38 (Iowa 1993). A right-to-sue may not issue if:

  1. A finding of "no probable cause" has been made; or
  2. The case has been "administratively closed" and two years have elapsed; or
  3. A conciliation agreement has been agreed to; or
  4. The Commission has served notice scheduling public hearing on the case; or
  5. The Commission has found "no jurisdiction" or "not timely" on the case.

Iowa Code sec. 216.16; 161 IAC 3.10(4) Once a right-to-sue is issued the Complainant has 90 days from the date of mailing, to file an action in district court. Saemisch v. Ley Motors, 387 N.W.2d 357, 359 (Iowa 1986)(runs from date of mailing); Iowa Code sec 216.16(3)(90 days from date RTS is "issued"); 161 IAC 2.1(6)("issue" a RTS means to mail it by certified mail) The action should be filed either in the county where the discriminatory act occured or where the Respondent has its principle place of business. Iowa Code sec. 216.16

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Affirmative Relief, Damages and Attorney's Fees

At the outset it should be noted that I will discuss the remedial authority of the Commission and the district courts interchangably. This is because by statute the district court hearing a right-to-sue can grant any relief which the Commission can, Iowa Code sec. 216.16(5); and by judicial interpretation the district court can award no more forms of relief than the Commission. Smith v. ADM Feed Co., 456 N.W.2d 378, 381 (Iowa 1990). Thus their authority to grant relief is identical.

Affirmative Relief

Throughout its history the Commission has been authorized by statute, Iowa Code sec. 216.15(8)(a), to award relief directed at modifying the conduct of the Respondent. If discrimination is found the Commission must enter a cease and desist order and can order further affirmative relief such as:

  • Hiring, reinstatement or upgrading of employees
  • Admission or restoration of individuals to a labor organization
  • Admission to or participation in an apprenticeship training program or other on-the-job training program
  • Admission 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 of the respondent denied to the complainant because of the discriminatory or unfair practice.
  • Reporting as to the manner of compliance.
  • Posting notices in conspicuous places in the respondent's place of business

In the first case in which the Iowa Court reviewed a Commission order the Court remarked that the Civil Rights Act must be interpreted not as merely providing a remedy in a specific dispute but rather as correcting a broader pattern of behavoir. Iron Workers Local No. 67 v. Hart, 191 N.W.2d 758, 770 (Iowa 1971). In attacking this broader target "[a]n appropriate remedial order should close off 'untraveled roads' to the illicit end not 'only the worn one'." Id. at 171.

Back Pay

Backpay awards have always been authorized by the Iowa Act. Iowa Code sec. 216.15(8)(a)(1) The statute expressly provides that the amount of back pay shall be reduced by the amount of interim earned income and unemployment compensation. Id. The ultimate goal of a backpay award " is to place the injured party in the same position as he or she would have been had there been no injuries." Foods Inc. v. Iowa Civil Rights Commission, 318 N.W.2d 162, 171 (Iowa 1982); accord, Hy-Vee v. Iowa Civil Rights Commission, 453 N.W.2d 512, 531 (Iowa 1990). The Hy Vee case repeated the additional principles that "In computing awards in discrimination cases . . . an unrealistic exactitude is not required [and that] uncertainties in determining what an employee would have earned before the discrimination should be resolved against the employer." Hy-Vee, at 530-31. In Foods the Court refused to deduct from a backpay award the complainant's farm income since this income would have been earned even had the complainant kept working for the store. Foods at 171. In both Foods and Hy Vee the Iowa Supreme Court approved awards of front pay to compensate the complainant for projected loss of wages in the future.Foods at 171; Hy-Vee, at 532.

Actual Damages - emotional distress

Actual damages other than backpay, including damages for emotional distress, are also available under the Iowa Act. Chauffeurs, Teamsters, & Helpers Local No. 238 v. Iowa Civil Rights Commission, 394 N.W.2d 375, 383 (Iowa 1986). "In computing awards in discrimination cases . . . an unrealistic exactitude is not required." Hy-Vee v. Iowa Civil Rights Commission, 453 N.W.2d 512, 525 (Iowa 1990); Hamer v. Iowa Civil Rights Commission, 472 N.W.2d 259, 265 (Iowa 1991). "Difficulty of ascertainment is no longer confused with right of recovery." Hy-Vee, 453 N.W.2d at 525. The decision of how much distress damages to award is, of necessity, a discretionary decision of the fact finder. E.g. Lynch v. City of Des Moines, 454 N.W.2d 827, 836 (Iowa 1990); Northrup v. Miles Homes, Inc. of Iowa, 204 N.W.2d 850, 860 (Iowa 1973)("Placing a dollar amount on [mental pain and anguish] is peculiarly a function of the jury"). The adequacy of the award in a particular case depends on the unique facts of that case. Lynch v. City of Des Moines, 454 N.W.2d 827, 836 (Iowa 1990). Thus prior awards are not particularly helpful. E.g. Id.; Householder v. Town of Clayton, 221 N.W.2d 488 (Iowa 1974); Northrup v. Miles Holmes, Inc. 204 N.W.2d 850, 861 (Iowa 1973). "[A] civil rights complainant may recover compensable damages for emotional distress without a showing of physical injury, severe distress, or outrageous conduct." Hy-Vee v. Iowa Civil Rights Commission,453 N.W.2d 512, 526 (Iowa 1990); Lynch v. Des Moines, 454 N.W.2d 827, 835 (Iowa 1990); Hamer v. Iowa Civil Rights Commission, 472 N.W.2d 259, 266 (Iowa 1991).

Based on persuasive precedent Iowa would almost certainly hold that medical testimony is not required in order to award damages for emotional distress. Indeed in the recent case of City of Hampton v. Iowa Civil Rights Commission, 554 N.W.2d 532 (Iowa 1996) the Court reduced an emotional distress damage award because of the lack of medical testimony. Yet the Court still did find that $20,000 was a justified award and so appears to have found that medical testimony may affect the amount of the award but does not preclude an award. For the proposition that medical testimony is not required See Franklin Publishing Co. v. Massachusets Commission Against Discrimination, 519 N.E.2d 798, 49 BNA FEP 1251, 1252 (Mass. 1988); accord Brunson v. E&L Transportation Co., 441 N.W.2d 48, 56 BNA FEP 1587 (Mich. Ct. App. 1989); Reithmiller v. Blue Cross Clue Shield, 390 N.W.2d 227, 233- 34 (Mich. App. 1986); c.f. e.g. Wilson v. General Motors Corp., 454 N.W.2d 405, 54 BNA FEP 680 (Mich. Ct. App. 1990) (distress damages awarded although no expert testimony); Moody v. Pepsi-Cola Bottling Co., 915 F.2d 201, 56 BNA FEP 1491 (6th Cir. 1990) (same). The "plaintiff's own testimony may be solely sufficient to establish humiliation or emotional distress." EEOC Policy Guide On Compensatory and Punitive Damages Under The 1991 Civil Rights Act, II. (A)(2) (July 7, 1992) (quoting Williams v. TWA, 660 F.2d 1267, 27 BNA FEP Cases 487 (8th Cir. 1981)); accord Stallworth v. Shuler, 777 F.2d 1431, 39 BNA FEP Cases 983 (11th Cir. 1985); Smith v. Anchor Building, Corp., 536 F.2d 231, 236 (8th Cir. 1976); Crumble v. Blumthal, 549 F.2d 462 (7th Cir. 1977); Thoreson v. Penthouse International, 563 N.Y.S.2d 968, 59 BNA FEP Cases 1085, 1088 (N.Y. Sup. Ct. 1990); Bradley v. Hubbard Broadcasting Inc., 471 N.W.2d 670, 677 (Minn.App. 1991). Indeed, emotional distress can be inferred from the circumstances. Seaton v. Sky Realty, 491 F.2d 634, 636 (7th Cir. 1974); Phiffer v. Proud Parrot Motor Hotel, 648 F.2d 548 (9th Cir. 1980); Blessum v. Howard County Board Of Supervisors, 295 N.W.2d 836, 845 (Iowa 1980); Dickerson v. Young, 332 N.W.2d 93, 98-99 (Iowa 1983).

Where an individual has an existing emotional trauma or injury at the time of the discrimination the award is governed by the "eggshell skull" doctrine familiar from general tort law. Under this doctrine a wrongdoer takes the person he injures as he finds him. McBoom v. State, 226 N.W.2d 41, 45 (Iowa 1975). This principle applies to psychological and emotional injuries. McBoom v. State, 226 N.W.2d 41, 45 (Iowa 1975). Thus if the victim is predisposed to suffer the type of distress inflicted or to suffer a more than the usual amount of distress then the wrongdoer is still liable for the entire amount of that distress. McBoom v. State, 226 N.W.2d 41, 45-46 (Iowa 1975) (prisoner's mental vulnerability as a result of his imprisonment was admissible to show emotional trauma suffered at loss of hand); accord EEOC Policy Guide On Compensatory and Punitive Damages Under The 1991 Civil Rights Act, II. (A)(2) (July 7, 1992) ("The fact that the complaining party may be unusually emotionally sensitive and incur great emotional harm from discriminatory conduct will not absolve the respondent from responsibility for the greater emotional harm."); Williamson v. Handy Button Machine Co., 817 F.2d 1290, 1294 (7th Cir. 1987) ("Perhaps [plaintiff] was unusually sensitive, but a tortfeasor takes its victims as it finds them"); Alston v. Blue Cross, 37 BNA FEP 1792, 1798 (E.D.N.Y. 1985)("defendant must take plaintiff as it finds her"); Brown v. Boston University, 674 F.Supp. 393, 46 BNA FEP 1642, 1644 (D.C. Mass. 1987) ("a defendant takes the plaintiff as she is, and takes the risk that she may be unusually susceptible to particular sorts of harm").

Attorney Fees

A prevailing civil rights plaintiff is entitled to attorney's fees. "The reason for awarding attorney fees in [a civil rights] case is to ensure that private citizens can afford to pursue the legal actions necessary to advance the public interest vindicated by the policies of civil rights acts." Ayala v. Centerline Inc., 415 N.W.2d 603, 605 (Iowa 1987). Interestingly in Iowa the award of fees is a one way provision. The provision authorizing fees is in the list of remedies that the Commission might order if it finds discrimination. Specifically the act states that the Commission may order:

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.

Iowa Code sec. 216.15(8)(a)(8). Obviously the Commission is not authorized under this provision to award fees to a prevailing respondent under any circumstances. On a right to sue letter the district court is given the additional authority to award fees to a respondent if the action is frivolous. Iowa Code sec. 216.16(5).

Calculation of fees is done on the familiar "lodestar" method by which the amount of reasonable hourly rate is multiplied by the number of hours reasonably expended. E.g. Landals v. George A. Rolfes Co., 454 N.W.2d 891, 897 (Iowa 1990); Dutcher v. Randal Foods, 546 N.W.2d 889, 896 (Iowa 1996). The hourly rate is based on the prevailing market rate in the relevant community. Dutcher at 896. An evidentiary hearing is required before an award of fees is made, Ayala at 606, and the court is required to make detailed findings with regard to fee award factors. Dutcher at 897.

A plaintiff who prevails on an appeal is entitled to fees for the appeal as well as for the trial. Ayala at 606. The fee proceedings are separate and distinct from the underlying trial and an appeal on the merits does not divest the district court of jurisdiction to award fees. Landals v. George A. Rolfes Co., 454 N.W.2d 891, 898 (Iowa 1990). A post-judgement motion under rule 179 (seeking to expand findings of fact) should be construed as an application for fees and a fee application is not subject to the 10 day limitation of a 179(b) motion. City of Hampton v. Iowa Civil Rights Commission, (September 18, 1996). The prevailing plaintiff is also entitled to fees expended in the course of the fee hearing.Lynch v. Des Moines,, 464 N.W.2d 236, 240 (Iowa 1990). Also a plaintiff may recover fees for legal work performed even prior to the filing of a charge of discrimination. Davis v. City of Waterloo, 551 N.W.2d 876, 886 (Iowa 1996). A contingency fee arrangement does not set a maximuum limit on the allowance of fees. Landalsat 898 (Iowa 1990). The fact that the fee award may greatly exceed the damages obtained does not by itself justify a reduction of the fee award. Lynch v. Des Moines,, 464 N.W.2d 236, 238-39 (Iowa 1990). Recovering less than a settlement offer likewise does not limit the fee award. Dutcher at 895. Ordinarily law clerk and paralegal fees should be awarded to a prevailing plaintiff. Landals v. George A. Rolfes Co., 454 N.W.2d 891, 898 (Iowa 1990); Edson v. Chambers, 519 N.W.2d 832, 834 (Iowa App. 1994). Awards for travel, photocopying, telephone, and investigative expenses are allowable but whether or not they are to be awarded are within the district court's discretion. Edson at 834.

More generally, the principles governing fee awards under the Iowa Act are identical to those governing federal fee awards. Dutcher at 897.

Punitive Damages

Except in housing cases punitive damages are not available under the Iowa Civil Rights Act. See Chauffeurs, Teamsters, & Helpers Local No. 238 v. Iowa Civil Rights Commission, 394 N.W.2d 375, 384 (Iowa 1986)(Commission has no authority to award punitives); Smith v. ADM Feed Co., 456 N.W.2d 378, 381 (Iowa 1990)(On a right-to-sue the district court sits as the Commission and can only award damages the Commission can) . In a housing case punitive damages are available in court, Iowa Code sec. 216.17A(6), and a fine is available before the Commission. sec. 216.15A(11)(b)

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Jury Trial

Except where housing discrimination is alleged, there is no jury trial in state court under the Iowa Civil Rights act. Smith v. ADM Feed Co., 456 N.W.2d 378, 381, 384 (Iowa 1990). The court has not actually ruled on housing discrimination but the lynchpin of its ruling in ADM was that the district courts "sit as the commission" because they hear cases via a right to sue letter. There is no right to sue in housing discrimination and besides it is absolutely clear that a "direct action" is on the same footing as any other civil action in court since a direct action can be maintained even if no charge is filed.

There may well be a jury trial on all Iowa Civil Rights Act claims when they are heard via supplement jurisdiction in federal court. In such a circumstance federal law, not state law, governs whether a jury trial is avialable even on the state civil rights claim. I have set out elsewhere the argument supporting such a jury trial in federal court.

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