Iowa

85B.1 Citation.

This chapter shall be known as the "Iowa Occupational Hearing Loss Act".

[C81, Section 85B.1]

85B.2 Workers' compensation - employers subject.

All employers as defined in chapter 85 are subject to this chapter.

[C81, Section 85B.2]

85B.3 Loss in course of employment.

All employees as defined in chapter 85 who incur an occupational hearing loss arising out of and in the course of employment, are subject to this chapter.

[C81, Section 85B.3]

85B.4 Definitions.

As used in this chapter, unless the context otherwise provides:

1. "Excessive noise exposure" means exposure to sound capable of producing occupational hearing loss.

2. "Hearing level" means the measured threshold of hearing sensitivity using audiometric instruments properly calibrated to the American national standards institute audiometric zero reference level.

3. "Occupational hearing loss" means that portion of a permanent sensorineural loss of hearing in one or both ears that exceeds an average hearing level of twenty-five decibels for the frequencies five hundred, one thousand, two thousand, and three thousand Hertz, arising out of and in the course of employment caused by excessive noise exposure. "Occupational hearing loss" does not include loss of hearing attributable to age or any other condition or exposure not arising out of and in the course of employment.

[C81, Section 85B.4]

98 Acts, ch 1160, Section 2

85B.5 Excessive noise exposure.

1. An excessive noise exposure is sound which exceeds the times and intensities listed in the following table:

Duration Sound level, Duration Sound level,

per day dBA slow per day dBA slow

hours response minutes response

8 90 52 106

7 91 45 107

6 92 37 108

5 93 33 109

4 1/2 94 30 110

4 95 26 111

3 1/2 96 22 112

3 97 18 113

2 1/2 98 16 114

2 1/4 99 15 115

2 100 No exposure greater

1 3/4 101 than 115 permitted

1 1/2 102

1 1/4 103

1 1/8 104

1 105

2. The workers’ compensation commissioner may promulgate rules pursuant to chapter 17A to amend this table based upon changes recommended in nationally recognized consensus standards.

3. An employer shall immediately inform an employee if the employer learns that the employee is being subjected to sound levels and duration in excess of those indicated in the above table. In instances of occupational hearing loss alleged to have occurred, either in whole or in part prior to January 1, 1981, an employer shall provide upon request by an affected employee whatever evidence is available to the employer of the date, duration, and intensities of noise to which the employee was subjected in employment.

[C81, §85B.5]

98 Acts, ch 1061, §11; 98 Acts, ch 1160, §3; 2009 Acts, ch 41, §263

Section numbered pursuant to Code editor directive

85B.6 Maximum compensation.

Compensation is payable for a maximum of one hundred seventy-five weeks for total occupational hearing loss. For partial occupational hearing loss compensation is payable for a period proportionate to the relation which the calculated binaural, both ears, hearing loss bears to one hundred percent, or total loss of hearing.

[C81, Section 85B.6]

85B.7 Periodic examination.

Compensation is not payable to an employee who willfully fails to submit for reasonable periodic physical and audiometric examinations. Reasonable written notice of the dates and times of examinations required by the employer shall be given the employee. Examinations shall be scheduled during times the employee, examining personnel, and examination facilities are reasonably available. Physical and audiometric examinations shall be at the expense of the employer. The employee shall be compensated for any time lost from work occasioned by employer examinations. Compensation is not payable to an employee if the employee fails or refuses to use employer-provided hearing protective devices required by the employer and communicated in writing to the employee at the time the employee is employed or at the time the protective devices are provided by the employer.

[C81, Section 85B.7]

85B.8 Date of occurrence.

1. A claim for occupational hearing loss due to excessive noise exposure may be filed beginning one month after separation from the employment in which the employee was subjected to excessive noise exposure. The date of the injury shall be the date of occurrence of any one of the following events:

a. Transfer from excessive noise exposure employment by an employer.

b. Retirement.

c. Termination of the employer-employee relationship.

2. The date of injury for a layoff which continues for a period longer than one year shall be six months after the date of the layoff. However, the date of the injury for any loss of hearing incurred prior to January 1, 1981, shall not be earlier than the occurrence of any one of the above events.

[C81, Section 85B.8]

98 Acts, ch 1160, Section 4, 5; 2008 Acts, ch 1032, Section 201

Section internally renumbered pursuant to Code editor directive

85B.9 Measuring hearing loss.

1. Audiometric instruments, properly calibrated to the American national standards institute specifications, shall be used for measuring hearing levels and in such tests necessary to establish total hearing loss, if any. The hearing tests and examinations shall be conducted in environments which comply with accepted national standards.

2. Audiometric examinations shall be administered by persons who are certified by the council for accreditation in occupational hearing conservation or by persons licensed as audiologists under chapter 154F, or as physicians or osteopathic physicians and surgeons under chapter 148, provided the licensed persons are trained in audiometry.

3. In calculating the total amount of hearing loss, the hearing levels at each of the four frequencies, five hundred, one thousand, two thousand, and three thousand Hertz, shall be added together and divided by four to determine the average decibel hearing level for each ear. If the resulting average decibel hearing level in either ear is twenty-five decibels or less, the percentage hearing loss for that ear shall be zero. For each resulting average decibel hearing level exceeding twenty-five decibels, an allowance of one and one-half percent shall be made up to the maximum of one hundred percent which is reached at an average decibel hearing level of ninety-two decibels. In determining the total binaural percentage hearing loss, the percentage hearing loss for the ear with better hearing shall be multiplied by five and added to the percentage hearing loss for the ear with worse hearing and the sum of the two divided by six.

4. a. The assessment of the proportion of the total binaural percentage hearing loss that is due to occupational noise exposure shall be made by the employer's regular or consulting physician or licensed audiologist who is trained and has had experience with such assessment. If several audiometric examinations are available for assessment, the physician or audiologist shall determine which examinations shall be used in the final assessment of occupational hearing loss.

b. If the employee disputes the assessment, the employee may select a physician or licensed audiologist similarly trained and experienced to give an assessment of the audiometric examinations.

5. This section is applicable in the event of partial permanent or total permanent occupational hearing loss in one or both ears.

[C81, Section 85B.9; 81 Acts, ch 42, Section 1]

98 Acts, ch 1160, Section 6; 2008 Acts, ch 1088, Section 81

Subsection 2 amended

Subsection 4, unnumbered paragraphs 1 and 2 editorially designated as paragraphs a and b respectively

85B.9A Apportionment of occupational hearing loss.

Apportionment of the total hearing loss between occupational and nonoccupational loss, for purposes of determining occupational hearing loss, may be made by an audiologist or physician with qualifications set forth in section 85B.9. In determining occupational hearing loss, consideration shall be given to all probable employment and nonemployment sources of loss. The apportionment of age-related loss shall be made by reducing the total binaural percentage hearing loss as calculated pursuant to section 85B.9, subsection 3, by the same percentage as the decibels of age-related loss occurring during the period of employment bears to the total decibel hearing level in each ear. The decibels of age-related loss shall be calculated according to tables adopted by the workers' compensation commissioner consistent with tables of the national institute for occupational safety and health existing on July 1, 1998, and consistent with section 85B.9, subsection 3.

98 Acts, ch 1160, Section 7

85B.10 Employer's notice of results of test.

The employer shall communicate to the employee, in writing, the results of an audiometric examination or physical examination of an employee which reflects an average hearing level in one or both ears in excess of twenty-five decibels for the test frequencies of five hundred, one thousand, two thousand, and three thousand Hertz, as soon as practicable after the examination. The communication shall include the name and qualifications of the person conducting the audiometric examination or physical examination, the site of the examination, the kind or type of test or examinations given, the results of each and the average decibel hearing level, for the four frequencies, in each ear, and, if known to the employer, whether the hearing loss is sensorineural and, if the hearing loss resulted from another cause, the cause.

[C81, Section 85B.10]

98 Acts, ch 1160, Section 8

85B.11 Previous hearing loss excluded.

An employer is liable, as provided in this chapter and subject to the provisions of chapter 85, for an occupational hearing loss to which the employment has contributed, but if previous hearing loss, whether occupational or not, is established by an audiometric examination or other competent evidence, whether or not the employee was subjected to excessive noise exposure within six months preceding the test, the employer is not liable for the previous loss, nor is the employer liable for a loss for which compensation has previously been paid or awarded. The employer is liable only for the difference between the percent of occupational hearing loss determined as of the date of the audiometric examination used to determine occupational hearing loss and the percentage of loss established by the pre-employment audiometric examination. An amount paid to an employee for occupational hearing loss by any other employer shall be credited against compensation payable by an employer for the hearing loss. An employee shall not receive in the aggregate greater compensation from all employers for occupational hearing loss than that provided in this section for total occupational hearing loss. A payment shall not be made to an employee unless the employee has worked in excessive noise exposure employment for a total period of at least ninety days for the employer from whom compensation is claimed.

[C81, Section 85B.11]

98 Acts, ch 1160, Section 9; 99 Acts, ch 96, Section 7

85B.12 Hearing aid provided.

A reduction of the compensation payable to an employee for occupational hearing loss shall not be made because the employee's ability to communicate may be improved by the use of a hearing aid. An employer who is liable for occupational hearing loss of an employee is required to provide the employee with a hearing aid for each affected ear unless it will not materially improve the employee's ability to communicate.

[C81, Section 85B.12]

98 Acts, ch 1160, Section 10

85B.13 Payment of compensation discharges employer.

Payments of compensation and compliance with other provisions of this chapter by the employer or the employer's insurance carrier in accordance with the findings and orders of the workers' compensation commissioner or a court making a final adjudication in appealed cases, discharges the employer from further obligation.

[C81, Section 85B.13]

98 Acts, ch 1061, Section 11

85B.14 Applicable chapters.

Chapters 17A, 85, and 86, so far as applicable, and not inconsistent with this chapter, apply in cases of compensable occupational hearing loss.

[C81, Section 85B.14]

85B.15 Workers' compensation commissioner to enforce.

The workers' compensation commissioner has jurisdiction over the operation and administration of the compensation provisions of this chapter.

[C81, Section 85B.15]

98 Acts, ch 1061, Section 11

[Prior to 9/24/86, see Labor, Bureau of[530]]

[Prior to 10/21/98, see 347--Ch 110]

875--110.1(88,89B) Purpose, scope and application.

110.1(1) Purpose. The purpose of Chapters 110, 120, 130, and 140 is to implement Iowa Code chapter 89B. The rules in Chapter 110 are to ensure that the hazards of all chemicals produced or imported are evaluated and that the information is transmitted to affected employers. This chapter is enforced under Iowa Code chapters 88 and 89B.

Chapter 120 provides that information concerning chemical hazards is transmitted to affected employers and employees. This transmittal of information is to be accomplished by means of comprehensive hazard communication programs, which are to include container labeling and other forms of warning, material safety data sheets, and employee training. This chapter is enforceable under Iowa Code chapter 88.

Chapter 130 addresses the procedures for the public to gain access to information on hazardous chemicals used in the community, the administrative procedures to determine the extent of the information required to be presented, and the actions to compel the release of the information when the employer does not voluntarily release the information.

Chapter 140 addresses the procedures by which an employer submits information to the local fire department on the hazardous chemicals at the employer's workplace.

110.1(2) Scope, application, and exemptions. These chapters require chemical manufacturers or importers to assess the hazards of chemicals which they produce or import, and all employers, except those exempted in subrule 110.1(3), to provide information to their employees about the hazardous chemicals to which they are exposed, by means of a hazard communication program, labels and other forms of warning, material safety data sheets, and information and training. In addition, this section requires distributors to transmit the required information to employers. These rules apply to any chemical which is known to be present in the workplace so that employees may be exposed under normal conditions of use or in a foreseeable emergency.

110.1(3) Exemption of employers--laboratories. These rules apply to laboratories only as follows:

a. Employers shall ensure that labels on incoming containers of hazardous chemicals are not removed or defaced;

b. Employers shall maintain any material safety data sheets that are received with incoming shipments of hazardous chemicals, and ensure that they are readily accessible to laboratory employees; and

c. Employers shall ensure that laboratory employees are apprised of the hazards of chemicals in their workplaces in accordance with rule 875--120.6(88,89B).

110.1(4) Exemption of employers--minimal exposure operations. In working operations where employees only handle chemicals in sealed containers which are not opened under normal conditions of use (such as are found in marine cargo handling, warehousing, or retail sales), 875--Chapters 110 and 120 apply to these operations only as follows:

a. Employers shall ensure that labels on incoming containers of hazardous chemicals are not removed or defaced;

b. Employers shall maintain copies of any material safety data sheets that are received with incoming shipments of the sealed containers of hazardous chemicals, shall obtain a material safety data sheet for sealed containers of hazardous chemicals received without a material safety data sheet if an employee requests the material safety data sheet, and shall ensure that the material safety data sheets are readily accessible during each work shift to employees when they are in their work area(s); and

c. Employers shall ensure that employees are provided with information and training in accordance with rule 875--120.6(88,89B) except for the location and availability of the written hazard communication program under paragraph 120.6(1)"c," to the extent necessary to protect them in the event of a spill or leak of a hazardous chemical from a sealed container.

110.1(5) Exemptions. This chapter and 875--Chapter 120 do not require labeling of the following chemicals:

a. Any pesticide as defined in the Federal Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. 136 et seq.), when subject to the labeling requirements of the Act and labeling regulations issued under that Act by the Environmental Protection Agency;

b. Any food, food additive, color additive, drug, cosmetic, or medical or veterinary device, including materials intended for use as ingredients in such products (e.g., flavors and fragrances), as defined in the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 301 et seq.) and regulations issued under that Act, when they are subject to the labeling requirements of that Act and labeling regulations issued under that Act by the Food and Drug Administration;

c. Any distilled spirits (beverage alcohols), wine, or malt beverage intended for nonindustrial use, as defined in the Federal Alcohol Administration Act (27 U.S.C. 201 et seq.) and regulation issued under that Act, when subject to the labeling requirements of that Act and labeling regulations issued under that Act by the Bureau of Alcohol, Tobacco, and Firearms; and

d. Any consumer product or hazardous substance as defined in the Consumer Product Safety Act (15 U.S.C. 2051 et seq.) and Federal Hazardous Substances Act (15 U.S.C. 1261 et seq.) respectively, when subject to a consumer product safety standard or labeling requirement of those Acts, or regulations issued under those Acts by the Consumer Product Safety Commission.

e. These rules do not apply to:

1. Any hazardous waste as defined by the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act of 1976, as amended (42 U.S.C. 6901 et seq.), when subject to regulations issued under that Act by the Environmental Protection Agency;

2. Tobacco or tobacco products;

3. Wood or wood products;

4. Articles;

5. Foods, drugs, or cosmetics intended for personal consumption by employees while in the workplace;

6. Any consumer product or hazardous substance, as those terms are defined in the Consumer Product Safety Act (15 U.S.C. 2051 et seq.) and Federal Hazardous Substances Act (15 U.S.C. 1261 et seq.) respectively, where the employer can demonstrate it is used in the workplace in the same manner as normal consumer use, and which use results in a duration and frequency of exposure which is not greater than exposure experienced by consumers; and

7. Any drug, as that term is defined in the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 301 et seq.), when it is in solid, final form for direct administration to the patient (i.e., tablets or pills).

This rule is intended to implement Iowa Code subsections 89B.4(1) and 89B.8(5).

875--110.2(88,89B) Definitions.

"Act" means the hazardous chemical risk right to know Act, Iowa Code chapter 455D.

"Appeal board" means the employment appeal board created under Iowa Code section 10A.601.

"Article" means a manufactured item:

1. Which is formed to a specific shape or design during manufacture;

2. Which has end use function(s) dependent in whole or in part upon its shape or design during end use; and

3. Which does not release, or otherwise result in exposure to, a hazardous chemical under normal conditions of use.

"Chemical" means any element, chemical compound, or mixture of elements or compounds.

"Chemical manufacturer" means an employer with a workplace where chemical(s) are produced for use or distribution.

"Chemical name" means the scientific designation of a chemical in accordance with the nomenclature system developed by the International Union of Pure and Applied Chemistry (IUPAC) or the Chemical Abstracts Service (CAS) rules of nomenclature, or name which will clearly identify the chemical for the purpose of conducting a hazard evaluation.

"Combustible liquid" means any liquid having a flash point at or above 100 degrees (37.8 degree C), but below 200 degrees (93.3 degree C), except any mixture having components with flash points of 200 degrees (93.3 degree C), or higher, the total volume of which makes up 99 percent or more of the total volume of the mixture.

"Commissioner" means the labor commissioner or designee.

"Common name" means any designation or identification such as code name, code number, trade name, brand name or generic name used to identify a chemical other than by chemical name.

"Compressed gas" means:

1. A gas or mixture of gases having, in a container, an absolute pressure exceeding 40 psi at 70 degrees (21.1 degree C);

2. A gas or mixture of gases having, in a container, an absolute pressure exceeding 104 psi at 130 degrees (54.4 degree C) regardless of the pressure at 70 degrees (21.1 degree C); or

3. A liquid having a vapor pressure exceeding 40 psi at 100 degrees (37.8 degree C) as determined by ASTM D-323-72.

"Container" means any bag, barrel, bottle, box, can, cylinder, drum, reaction vessel, storage tank, or the like that contains a hazardous chemical. For purposes of 875--Chapters 110, 120, 130, and 140, pipes or piping systems, and engines, fuel tanks, or other operating systems in a vehicle, are not considered to be containers.

"Designated representative" means an individual or organization to whom an employee gives written authorization to exercise such employee's rights under 875--Chapter 120. A recognized or certified collective bargaining agent shall be treated automatically as a designated representative without regard to written employee authorization.

"Distributor" means a business, other than a chemical manufacturer or importer, which supplies hazardous chemicals to other distributors or to employers.

"Division" means the division of labor services of the department of workforce development.

"Emergency response department" means any governmental department which might be reasonably expected to be required to respond to an emergency involving a hazardous chemical, including, but not limited to, local fire, police, medical rescue, disaster, and public health departments.

"Employee" means an individual employed by an employer in a workplace in this state who may be exposed to hazardous chemicals under normal operating conditions or foreseeable emergencies. Workers such as office workers or bank tellers who encounter hazardous chemicals only in nonrecurring, isolated instances are not covered.

"Employer" means a person engaged in a business in this state where chemicals are either used, distributed, or produced for use or distribution including a contractor or subcontractor.

"Explosive" means a chemical that causes a sudden, almost instantaneous release of pressure, gas, and heat when subjected to sudden shock, pressure, or high temperature.

"Exposure" or "exposed" means that an employee is subjected to a hazardous chemical in the course of employment through any route of entry (inhalation, ingestion, skin contact or absorption, etc.), and includes potential (e.g., accidental or possible) exposure.

"Flammable" means a chemical that falls into one of the following categories:

1. "Aerosol, flammable" means an aerosol that, when tested by the method described in 16 CFR 1500.45 (1985), yields a flame projection exceeding 18 inches at full valve opening, or a flashback (a flame extending back to the valve) at any degree of valve opening;

2. "Gas, flammable" means:

A gas that, at ambient temperature and pressure, forms a flammable mixture with air at a concentration of 13 percent by volume or less; or

A gas that, at ambient temperature and pressure, forms a range of flammable mixtures with air wider than 12 percent of volume, regardless of the lower limit;

3. "Liquid, flammable" means any liquid having a flash point below 100 degrees (37.8 degree C), except any mixture having components with flash points of 100 degrees (37.8 degree C) or higher, the total of which make up 99 percent or more of the total volume of the mixture.

4. "Solid, flammable" means a solid, other than a blasting agent or explosive as defined in subsection 29 CFR 1910.109(a) (1984), that is liable to cause fire through friction, absorption of moisture, spontaneous chemical change, or retained heat from manufacturing or processing, or which can be ignited readily and when ignited burns so vigorously and persistently as to create a serious hazard. A chemical shall be considered to be a flammable solid if, when tested by the method described in 16 CFR 1500.44 (1985), it ignites and burns with a self-sustained flame at a rate greater than 1/10 inch per second along its major axis.

"Flashpoint" means the minimum temperature at which a liquid gives off a vapor in sufficient concentration to ignite when tested as follows:

1. Tagliabue Closed Tester (see American National Standard Method of Test for Flash Point by Tag Closed Tester, ASTM D 56-82) for liquids with a viscosity of less than 45 Saybolt Universal Seconds (SUS) at 100 degrees (37.8 degree C), that do not contain suspended solids and do not have a tendency to form a surface film under test; or

2. Pensky-Martens Closed Tester (see American National Standard Method of Test for Flash Point by Pensky-Martens Closed Tester, ASTM D 93-85) for liquids with a viscosity equal to or greater than 45 SUS at 100 degrees (37.8 degree C), or that contain suspended solids, or that have a tendency to form a surface film under test; or

3. Setaflash Closed Tester (see American National Standard Method of Test for Flash Point by Setaflash Closed Tester ASTM D 3278-82E1).

Organic peroxides, which undergo autoaccelerating thermal decomposition, are excluded from any of the flash point determination methods specified above.

"Foreseeable emergency" means any potential occurrence such as, but not limited to, equipment failure, rupture of containers, or failure of control equipment which could result in an uncontrolled release of a hazardous chemical into the workplace.

"Hazard warning" means any words, pictures, symbols, or combination thereof appearing on a label or other appropriate form of warning which conveys the hazard(s) of the chemical(s) in the container(s).

"Hazardous chemical" means any chemical which is a physical hazard or a health hazard.

"Health hazard" means a chemical for which there is statistically significant evidence based on at least one study conducted in accordance with established scientific principles that acute or chronic health effects may occur in exposed employees. The term "health hazard" includes chemicals which are carcinogens, toxic or highly toxic agents, reproductive toxins, irritants, corrosives, sensitizers, hepatoxins, nephrotoxins, neurotoxins, agents which act on hematopoietic system, and agents which damage the lungs, skin, eyes, or mucous membranes. Appendix A (available from the division) provides further definitions and explanations of the scope of health hazards covered by this rule, and Appendix B (available from the division) describes the criteria to be used to determine whether or not a chemical is to be considered hazardous for purposes of this chapter.

"Identity" means any chemical or common name which is indicated on the material safety data sheet (MSDS) for the chemical. The identity used shall permit cross-references to be made among the required list of hazardous chemicals, the label and the MSDS.

"Immediate use" means that the hazardous chemical will be under the control of and used only by the person who transfers it from a labeled container and only within the work shift in which it is transferred.

"Importer" means the first business with employees within the Customs Territory of the United States which receives hazardous chemicals produced in other countries for the purpose of supplying them to distributors or employers within the United States.

"Information in sufficient specificity" means a list of hazardous chemicals which are consistently generated by, used by, stored at, or transported from the employer's facility. A form is not specified. The information shall be submitted on an 81/2? by 11? page and shall include:

1. Name of the employer;

2. Name of contact person of the employer;

3. Mailing address of the employer;

4. Address of the establishment for which the information is provided; and

5. A list of the chemicals which includes:

a. Identity of the hazardous chemical;

b. NFPA numerical hazard rating in health, flammability, and reactivity as well as any information which constitutes a special hazard pursuant to NFPA 704-1980, chapter 5, for each listed chemical; and

c. Any other special hazard information from the material safety data sheets which may be relevant.

If the fire department is unable to tour the facility annually due to limits by the fire department or employer, the fire chief shall be provided upon request with the following:

1. A plane view scale diagram which shows the permanent location of each hazardous chemical within the employer's facility, as well as easily recognizable reference points such as doorways, stairs, and windows; and

2. A copy of requested material safety data sheets.

"Interested person" means any person who is requesting information from an employer, but does not include an employee of that employer.

"Label" means any written, printed, or graphic material displayed on or affixed to containers of hazardous chemicals.

"Material safety data sheet (MSDS)" means written or printed material concerning a hazardous chemical which is prepared in accordance with rule 875--120.5(88,89B).

"Mixture" means any combination of two or more chemicals if the combination is not, in whole or in part, the result of a chemical reaction.

"Organic peroxide" means an organic compound that contains the bivalent-O-O-structure and which may be considered to be a structural derivative of hydrogen peroxide where one or both of the hydrogen atoms has been replaced by an organic radical.

"Oxidizer" means a chemical other than a blasting agent or explosive as defined in 875--10.20(88), specifically 29 CFR 1910.109(a)(1985), that initiates or promotes combustion in other materials thereby causing fire either of itself or through the release of oxygen or other gases.

"Permanently stored hazardous material" means a substance that is located in an area designated by the employer or located in an area which is established through common use and practice as being the location where the hazardous chemical is stored or can be obtained.

"Physical hazard" means a chemical for which there is scientifically valid evidence that it is a combustible liquid, a compressed gas, explosive, flammable, an organic peroxide, an oxidizer, pyrophoric, unstable (reactive) or water-reactive.

"Produce" means to manufacture, process, formulate, or repackage.

"Pyrophoric" means a chemical that will ignite spontaneously in air at a temperature of 130 degrees (54.4 degree C) or below.

"Responsible party" means someone who can provide additional information on the hazardous chemical and appropriate emergency procedures, if necessary. A chemical manufacturer or importer shall be deemed a responsible party.

"Specific chemical identity" means the chemical name, Chemical Abstracts Service (CAS) Registry Number, or any other information that reveals the precise chemical designation of the substance.

"Trade secret" means any confidential formula, pattern, process, device, information or compilation of information that is used in an employer's business, and that gives the employer an opportunity to obtain an advantage over competitors who do not know or use it. Appendix D (available from the division) sets out the criteria to be used in evaluating trade secrets.

"Unstable (reactive)" means a chemical which in the pure state, or as produced or transported, will vigorously polymerize, decompose, condense, or will become self-reactive under conditions of shocks, pressure, or temperature.

"Use" means to package, handle, react, or transfer.

"Water-reactive" means a chemical that reacts with water to release a gas that is either flammable or presents a health hazard.

"Work area" means a room or defined space in a workplace where hazardous chemicals are produced or used, and where employees are present.

"Workplace" means an establishment, job site, or project, at one geographical location containing one or more work areas.

This rule is intended to implement Iowa Code sections 89B.4 and 89B.8.

875--110.3(88,89B) Hazard determination.

110.3(1) Chemical manufacturers and importers shall evaluate chemicals produced in their workplaces or imported by them to determine if they are hazardous. Employers are not required to evaluate chemicals unless they choose not to rely on the evaluation performed by the chemical manufacturer or importer for the chemical to satisfy this requirement. Employers who mix or otherwise combine chemicals are chemical manufacturers of that resultant chemical.

110.3(2) Chemical manufacturers, importers, or employers evaluating chemicals shall identify and consider the available scientific evidence concerning the hazards. For health hazards, evidence which is statistically significant and which is based on at least one positive study conducted in accordance with established scientific principles is considered to be sufficient to establish a hazardous effect if the results of the study meet the definitions of health hazards in rule 110.2(88,89B). Appendix A (available from the division) shall be consulted for the scope of health hazards covered, and Appendix B (available from the division) shall be consulted for the criteria to be followed with respect to the completeness of the evaluation, and the data to be reported.

110.3(3) The chemical manufacturer, importer, or employer evaluating chemicals shall treat the following sources as establishing that the chemicals listed in them are hazardous:

a. 29 CFR Part 1910, Subpart Z, (1986) Toxic and Hazardous Substances, Occupational Safety and Health Administration (OSHA); or

b. "Threshold Limit Values for Chemical Substances and Physical Agents in the Work Environment," American Conference of Government Industrial Hygienists (ACGIH) (1986).

The chemical manufacturer, importer, or employer is still responsible for evaluating the hazards associated with the chemicals in these source lists in accordance with the requirements of this chapter.

110.3(4) Chemical manufacturers, importers, and employers evaluating chemicals shall treat the following sources as establishing that a chemical is a carcinogen or potential carcinogen for hazard communication purposes:

a. National Toxicology Program (NTP), "Annual Report on Carcinogens" (1982);

b. International Agency for Research on Cancer (IARC) Monographs (1982); or

c. 29 CFR Part 1910, Subpart Z, (1986) Toxic and Hazardous Substances, Occupational Safety and Health Administration.

NOTE--The "Registry of Toxic Effects of Chemical Substances" published by the National Institute for Occupational Safety and Health indicates whether a chemical has been found by NTP or IARC to be a potential carcinogen. The original document referenced in RTECS must be consulted in all instances. RTECS should be regarded as a locator document only.

110.3(5) The chemical manufacturer, importer, or employer evaluating chemicals shall determine the hazards of mixtures of chemicals as follows:

a. If a mixture has been tested as a whole to determine its hazards, results of the testing shall be used to determine whether the mixture is hazardous;

b. If a mixture has not been tested as a whole to determine whether the mixture is a health hazard, the mixture shall be assumed to present the same health hazards as do the components which comprise 1 percent (by weight or volume) or greater of the mixture, except that the mixture shall be assumed to present a carcinogenic hazard if it contains a component in concentrations of 0.1 percent or greater which is considered to be a carcinogen under subrule 110.3(4);

c. If a mixture has not been tested as a whole to determine whether the mixture is a physical hazard, the chemical manufacturer, importer, or employer may use whatever scientifically valid data is available to evaluate the physical hazard potential of the mixture; and

d. If the chemical manufacturers, importers, or employers have evidence to indicate that a component present in the mixture in concentrations of less than 1 percent (or in the case of carcinogens, less than 0.1 percent) could be released in concentrations which would exceed an established division (OSHA) permissible exposure limit or ACGIH Threshold Limit Value (1985-1986), or could present a health hazard to employees in those concentrations, the mixture shall be assumed to present the same hazard.

110.3(6) Chemical manufacturers, importers, or employers evaluating chemicals shall describe in writing the procedures they use to determine the hazards of the chemical they evaluate. The procedures shall be made available as specified in 875--subrule 120.2(2).

875--110.4(88,89B) Labels and other forms of warning.

110.4(1) The chemical manufacturer, importer, or distributor shall ensure that each container of hazardous chemicals leaving the workplace is labeled, tagged, or marked with the following information:

a. Identity of the hazardous chemical(s);

b. Appropriate hazard warnings; and

c. Name and address of the chemical manufacturer, importer, or other responsible party.

110.4(2) For solid metal (such as a steel beam or a metal casting) that is not exempted as an article due to its downstream use, the required label may be transmitted to the customer at the time of the initial shipment, and need not be included with subsequent shipments to the same employer unless the information on the label changes. The label may be transmitted with the initial shipment itself, or with the material safety data sheet that is to be provided prior to or at the time of the first shipment. This exception to requiring labels on every container of hazardous chemicals is only for the solid metal itself and does not apply to hazardous chemicals used in conjunction with, or known to be present with, the metal and to which employees handling the metal may be exposed (for example, cutting fluids or lubricants).

110.4(3) Chemical manufacturers, importers, or distributors shall ensure that each container of hazardous chemicals leaving the workplace is labeled, tagged, or marked in accordance with this rule in a manner which does not conflict with the requirements of the Hazardous Material Transportation Act (49 U.S.C. 1801 et seq.) and regulations issued under the Act by the Department of Transportation.

110.4(4) If the hazardous chemical is regulated by the division in an OSHA substance-specific health standard, the chemical manufacturer, importer, distributor, or employer shall ensure that the labels or other forms of warning used are in accordance with the requirements of that standard.

110.4(5) The chemical manufacturer, importer, distributor, or employer need not affix new labels to comply with this rule or 875--120.4(88,89B) if existing labels already convey the required information.

875--110.5(88,89B) Material safety data sheets.

110.5(1) Chemical manufacturers and importers shall obtain or develop a material safety data sheet for each hazardous chemical they produce or import.

110.5(2) Each material safety data sheet shall be in English and shall contain at least the following information:

a. The identity used on the label, and except as provided for in rule 110.6(88,89B) on trade secrets:

(1) If the hazardous chemical is a single substance, its chemical and common name(s);

(2) If the hazardous chemical is a mixture which has been tested as a whole to determine its hazards, the chemical and common name(s) of the ingredients which contribute to these known hazards, and the common name(s) of the mixture itself; or

(3) If the hazardous chemical is a mixture which has not been tested as a whole:

1. The chemical and common name(s) of all ingredients which have been determined to be health hazards, and which comprise 1 percent or greater of the composition, except that chemicals identified as carcinogens under subrule 110.3(4) shall be listed if the concentrations are 0.1 percent or greater; and

2. The chemical and common name(s) of all ingredients which have been determined to be health hazards, and which comprise less than 1 percent (0.1 percent for carcinogens) of the mixture, if there is evidence that the ingredient(s) could be released from the mixture in concentrations which would exceed an established division's (OSHA) permissible exposure limit or ACGIH Threshold Limit Value, or could present a health hazard to employees; and

3. The chemical and common name(s) of all ingredients which have been determined to present a physical hazard when present in the mixture;

b. Physical and chemical characteristics of the hazardous chemical (such as vapor pressure, flash point);

c. The physical hazards of the hazardous chemical, including the potential for fire, explosion, and reactivity;

d. The health hazards of the hazardous chemical, including signs and symptoms of exposure, and any medical conditions which are generally recognized as being aggravated by exposure to the chemical;

e. The primary route(s) of entry;

f. The division's (OSHA) permissible exposure limit, ACGIH Threshold Limit Value (1985-1986), and any other exposure limit used or recommended by the chemical manufacturer, importer, or employer preparing the material safety data sheet, where available;

g. Whether the hazardous chemical is listed in the National Toxicology Program (NTP) "Annual Report on Carcinogens" (1982) or has been found to be a potential carcinogen in the International Agency for Research on Cancer (IARC) "Monographs" (1982), or by the division;

h. Any generally applicable precautions for safe handling and use which are known to the chemical manufacturer, importer or employer preparing the material safety data sheet, including appropriate hygienic practices, protective measures during repair and maintenance of contaminated equipment, and procedures for cleanup of spills and leaks;

i. Any generally applicable control measures which are known to the chemical manufacturer, importer, or employer preparing the material safety data sheet, such as appropriate engineering controls, work practices, or personal protective equipment;

j. Emergency and first-aid procedures;

k. The date of preparation of the material safety data sheet or the last change to it; and

l. The name, address and telephone number of the chemical manufacturer, importer, employer, or other responsible party preparing or distributing the material safety data sheet, who can provide additional information on the hazardous chemical and appropriate emergency procedures, if necessary.

110.5(3) If no relevant information is found for any given category on the material safety data sheet, the chemical manufacturer, importer, or employer preparing the material safety data sheet shall mark it to indicate that no applicable information was found.

110.5(4) Where complex mixtures have similar hazards and contents (i.e., the chemical ingredients are essentially the same, but the specific composition varies from mixture to mixture), the chemical manufacturer, importer, or employer may prepare one material safety data sheet to apply to all of these similar mixtures.

110.5(5) The chemical manufacturer, importer, or employer preparing the material safety data sheet shall ensure that the information recorded accurately reflects the scientific evidence used in making the hazard determination. If the chemical manufacturer, importer, or employer preparing the material safety data sheet becomes newly aware of any significant information regarding the hazards of a chemical, or ways to protect against the hazards, this new information shall be added to the material safety data sheet within three months. If the chemical is not currently being produced or imported the chemical manufacturer or importer shall add the information to the material safety data sheet before the chemical is introduced into the workplace again.

110.5(6) Chemical manufacturers or importers shall ensure that distributors and employers are provided an appropriate material safety data sheet with their initial shipment, and with the first shipment after a material safety data sheet is updated. The chemical manufacturer or importer shall either provide material safety data sheets with the shipped containers or send them to the employer prior to or at the time of the shipment. If the material safety data sheet is not provided with the shipment that has been labeled as a hazardous chemical, the employer shall obtain one from the chemical manufacturer, importer, or distributor as soon as possible.

110.5(7) Distributors shall ensure that material safety data sheets, and updated information, are provided to other distributors and employers. Retail distributors which sell hazardous chemicals to commercial customers shall provide a material safety data sheet to the employers upon request, and shall post a sign or otherwise inform them that a material safety data sheet is available. Chemical manufacturers, importers, and distributors need not provide material safety data sheets to retail distributors which have informed them that the retail distributor does not sell the product to commercial customers or open the sealed container to use it in their own workplaces.

875--110.6(88,89B) Trade secrets.

110.6(1) The chemical manufacturer, importer or employer may withhold the specific chemical identity, including the chemical name and other specific identification of a hazardous chemical, from the material safety data sheet, provided that:

a. The claim that the information withheld is a trade secret can be supported;

b. Information contained in the material safety data sheet concerning the properties and effects of the hazardous chemical is disclosed;

c. The material safety data sheet indicates that the specific chemical identity is being withheld as a trade secret; and

d. The specific chemical identity is made available to health professionals, employees, and designated representatives, in accordance with the applicable provisions of this rule.

110.6(2) Where a treating physician or nurse determines that a medical emergency exists and the specific chemical identity of a hazardous chemical is necessary for emergency or first-aid treatment, the chemical manufacturer, importer, or employer shall immediately disclose the specific chemical identity of a trade secret chemical to that treating physician or nurse, regardless of the existence of a written statement of need or a confidentiality agreement. The chemical manufacturer, importer, or employer may require a written statement of need and confidentiality agreement, in accordance with the provisions of subrules 110.6(3) and 110.6(4), as soon as circumstances permit.

110.6(3) In nonemergency situations, a chemical manufacturer, importer, or employer shall, upon request, disclose a specific chemical identity, otherwise permitted to be withheld under subrule 110.6(1), to a health professional (i.e., physician, industrial hygienist, toxicologist, epidemiologist, or occupational health nurse), providing medical or other occupational health services to exposed employee(s), and to employees or designated representatives, if:

a. The request is in writing;

b. The request describes with reasonable detail one or more of the following occupational health needs for the information:

(1) To assess the hazards of the chemicals to which employees will be exposed;

(2) To conduct or assess sampling of the workplace atmosphere to determine employee exposure levels;

(3) To conduct preassignment or periodic medical surveillance of exposed employees;

(4) To provide medical treatment to exposed employees;

(5) To select or assess appropriate personal protective equipment for exposed employees;

(6) To design or assess engineering controls or other protective equipment for exposed employees; and

(7) To conduct studies to determine the health effects of exposure.

c. The request explains in detail why the disclosure of the specific chemical identity is essential and that, in lieu thereof, the disclosure of the following information to the health professional, employee, or designated representative, would not satisfy the purposes described in 110.6(3)"b":

(1) The properties and effects of the chemical;

(2) Measures for controlling workers' exposure to the chemical;

(3) Methods of monitoring and analyzing worker exposure to the chemical; and

(4) Methods of diagnosing and treating harmful exposures to the chemical;

d. The request includes a description of the procedures to be used to maintain the confidentiality of the disclosed information; and

e. The health professional, and the employer or contractor of the services of the health professional (i.e., downstream employer, labor organization, or individual employee), employee, or designated representative, agree in a written confidentiality agreement that the health professional, employee, or designated representative, will not use the trade secret information for any purpose other than the health need(s) asserted and agree not to release the information under any circumstances other than to the division, as provided in subrule 110.6(6), except as authorized by the terms of the agreement or by the chemical manufacturer, importer, or employer.

110.6(4) The confidentiality agreement authorized by 110.6(3)"d":

a. May restrict the use of the information to the health purposes indicated in the written statement of need;

b. May provide appropriate legal remedies in the event of a breach of the agreement, including stipulation of a reasonable preestimate of likely damages; and

c. May not include requirements for the posting of a penalty bond.

110.6(5) Nothing in 875--Chapters 110 and 120 is meant to preclude the parties from pursuing noncontractual remedies to the extent permitted by law.

110.6(6) If the health professional, employee, or designated representative receiving the trade secret information decides that there is a need to disclose it to the division, the chemical manufacturer, importer, or employer who provided the information shall be informed by the health professional, employee, or designated representative prior to, or at the same time as, the disclosure.

110.6(7) If the chemical manufacturer, importer, or employer denies a written request for disclosure of a specific chemical identity, the denial must:

a. Be provided to the health professional, employee, or designated representative, within 30 days of the request;

b. Be in writing;

c. Include evidence to support the claim that the specific chemical identity is a trade secret;

d. State the specific reasons why the request is being denied; and

e. Explain in detail how alternative information may satisfy the specific medical or occupational health need without revealing the specific chemical identity.

110.6(8) The health professional, employee, or designated representative whose request for information is denied under subrule 110.6(3) may refer the request and the written denial of the request to the division for consideration.

110.6(9) When a health professional, employee, or designated representative refers the denial to the division under subrule 110.6(8), the division shall consider the evidence to determine if:

a. The chemical manufacturer, importer, or employer has supported the claim that the specific chemical identity is a trade secret;

b. The health professional, employee, or designated representative has supported the claim that there is a medical or occupational health need for the information; and

c. The health professional, employee, or designated representative has demonstrated adequate means to protect the confidentiality.

110.6(10) If the division determines that the specific chemical identity requested under subrule 110.6(3) is not a bona fide trade secret, or that it is a trade secret, but the requesting health professional, employee, or designated representative has a legitimate medical or occupational health need for the information, has executed a written confidentiality agreement, and has shown adequate means to protect the confidentiality of the information, the chemical manufacturer, importer, or employer will be subject to citation by the division.

If a chemical manufacturer, importer, or employer demonstrates to the division that the execution of a confidentiality agreement would not provide sufficient protection against the potential harm from the unauthorized disclosure of a trade secret specific chemical identity, the commissioner may issue an order or impose additional limitations or conditions upon the disclosure of the requested chemical information as may be appropriate to ensure that the occupational health services are provided without an undue risk of harm to the chemical manufacturer, importer, or employer.

110.6(11) If a citation for a failure to release specific chemical identity information is contested by the chemical manufacturer, importer, or employer, the matter will be adjudicated before the appeal board in accordance with the enforcement scheme established in Iowa Code chapter 88 and the applicable appeal board rules. In accordance with appeal board rules, when a chemical manufacturer, importer, or employer continues to withhold the information during the contest, the appeal board may review the citation and supporting documentation in camera or issue appropriate orders to protect the confidentiality of the matters.

110.6(12) Notwithstanding the existence of a trade secret claim, a chemical manufacturer, importer, or employer shall, upon request, disclose to the commissioner any information which this rule requires the chemical manufacturer, importer, or employer to make available. Where there is a trade secret claim, the claim shall be made no later than at the time the information is provided to the commissioner so that suitable determinations of trade secret status can be made and the necessary protections can be implemented.

110.6(13) Nothing in this rule shall be construed as requiring disclosure under any circumstances of process or percentage of mixture information which is a trade secret.

875--110.7 Rescinded IAB 6/15/88, effective 8/15/88.

These rules are intended to implement Iowa Code sections 89B.4, 89B.5, 89B.8, and 89B.11.

[Filed 3/21/86, Notice 12/18/85--published 4/9/86, effective 5/25/86]

[Filed emergency 9/5/86--published 9/24/86, effective 9/24/86]1

[Filed emergency 4/17/87--published 5/6/87, effective 4/17/87]

[Filed 4/17/87, Notice 9/24/86--published 5/6/87, effective 6/10/87]

[Filed 5/27/88, Notice 9/9/87--published 6/15/88, effective 8/15/88]

[Filed 7/8/88, Notice 5/18/88--published 7/27/88, effective 9/1/88]

[Filed emergency 8/30/88--published 9/21/88, effective 9/1/88]

1 Two ARCs

216.1 Citation.

This chapter may be known and may be cited as the "Iowa Civil Rights Act of 1965".

[C66, 71, §105A.1; C73, 75, 77, 79, 81, §601A.1]

C93, §216.1

216.2 Definitions.

When used in this chapter, unless the context otherwise requires:

1. "Commission" means the Iowa state civil rights commission created by this chapter.

2. "Commissioner" means a member of the commission.

3. "Court" means the district court in and for any judicial district of the state of Iowa or any judge of the court if the court is not in session at that time.

4. "Covered multifamily dwelling" means any of the following:

a. A building consisting of four or more dwelling units if the building has one or more elevators.

b. The ground floor units of a building consisting of four or more dwelling units.

5. "Disability" means the physical or mental condition of a person which constitutes a substantial disability, and the condition of a person with a positive human immunodeficiency virus test result, a diagnosis of acquired immune deficiency syndrome, a diagnosis of acquired immune deficiency syndrome-related complex, or any other condition related to acquired immune deficiency syndrome. The inclusion of a condition related to a positive human immunodeficiency virus test result in the meaning of "disability" under the provisions of this chapter does not preclude the application of the provisions of this chapter to conditions resulting from other contagious or infectious diseases.

6. "Employee" means any person employed by an employer.

7. "Employer" means the state of Iowa or any political subdivision, board, commission, department, institution, or school district thereof, and every other person employing employees within the state.

8. "Employment agency" means any person undertaking to procure employees or opportunities to work for any other person or any person holding itself to be equipped to do so.

9. a. "Familial status" means one or more individuals under the age of eighteen domiciled with one of the following:

(1) A parent or another person having legal custody of the individual or individuals.

(2) The designee of the parent or the other person having custody of the individual or individuals, with the written permission of the parent or other person.

(3) A person who is pregnant or is in the process of securing legal custody of the individual or individuals.

b. "Familial status" also means a person who is pregnant or who is in the process of securing legal custody of an individual who has not attained the age of eighteen years.

10. "Gender identity" means a gender-related identity of a person, regardless of the person's assigned sex at birth.

11. "Labor organization" means any organization which exists for the purpose in whole or in part of collective bargaining, of dealing with employers concerning grievances, terms, or conditions of employment, or of other mutual aid or protection in connection with employment.

12. "Person" means one or more individuals, partnerships, associations, corporations, legal representatives, trustees, receivers, and the state of Iowa and all political subdivisions and agencies thereof.

13. a. "Public accommodation" means 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, provided that any place, establishment, or facility that caters or offers services, facilities, or goods to the nonmembers gratuitously shall be deemed a public accommodation if the accommodation receives governmental support or subsidy. Public accommodation shall not mean any bona fide private club or other place, establishment, or facility which is by its nature distinctly private, except when such distinctly private place, establishment, or facility caters or offers services, facilities, or goods to the nonmembers for fee or charge or gratuitously, it shall be deemed a public accommodation during such period.

b. "Public accommodation" 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, gratuitously or otherwise. This paragraph shall not be construed by negative implication or otherwise to restrict any part or portion of the preexisting definition of the term "public accommodation".

14. "Sexual orientation" means actual or perceived heterosexuality, homosexuality, or bisexuality.

15. "Unfair practice" or "discriminatory practice" means those practices specified as unfair or discriminatory in sections 216.6, 216.6A, 216.7, 216.8, 216.8A, 216.9, 216.10, 216.11, and 216.11A.

[C66, 71, §105A.2; C73, 75, 77, 79, 81, §601A.2]

84 Acts, ch 1096, §1; 88 Acts, ch 1236, §1; 89 Acts, ch 205, §1; 91 Acts, ch 184, §1; 92 Acts, ch 1129, §1 - 3

C93, §216.2

94 Acts, ch 1023, §42; 95 Acts, ch 129, §2; 96 Acts, ch 1129, §113; 2007 Acts, ch 191, §1; 2009 Acts, ch 96, §1

Subsections 9 and 13 editorially internally renumbered

Subsection 15 amended

216.3 Commission appointed.

The Iowa state civil rights commission shall consist of seven members appointed by the governor subject to confirmation by the senate. Appointments shall be made to provide geographical area representation insofar as practicable. No more than four members of the commission shall belong to the same political party. Members appointed to the commission shall serve for four-year staggered terms beginning and ending as provided by section 69.19.

Vacancies on the commission shall be filled by the governor by appointment for the unexpired part of the term of the vacancy. Any commissioner may be removed from office by the governor for cause.

The governor subject to confirmation by the senate shall appoint a director who shall serve as the executive officer of the commission.

[C66, 71, §105A.3; C73, 75, 77, 79, 81, §601A.3]

C93, §216.3

Confirmation, see §2.32

216.4 Compensation and expenses - rules.

Commissioners shall be paid a per diem as specified in section 7E.6 and shall be reimbursed for actual and necessary expenses incurred while on official commission business. All per diem and expense moneys paid to commissioners shall be paid from funds appropriated to the commission. The commission shall adopt, amend or rescind rules as necessary for the conduct of its meetings. A quorum shall consist of four commissioners.

[C66, 71, §105A.4; C73, 75, 77, 79, 81, §601A.4]

90 Acts, ch 1256, §51

C93, §216.4

216.5 Powers and duties.

The commission shall have the following powers and duties:

1. To prescribe the duties of a director and appoint and prescribe the duties of such investigators and other employees and agents as the commission shall deem necessary for the enforcement of this chapter.

2. To receive, investigate, mediate, and finally determine the merits of complaints alleging unfair or discriminatory practices.

3. To investigate and study the existence, character, causes, and extent of discrimination in public accommodations, employment, apprenticeship programs, on-the-job training programs, vocational schools, credit practices, and housing in this state and to attempt the elimination of such discrimination by education and conciliation.

4. To seek a temporary injunction against a respondent when it appears that a complainant may suffer irreparable injury as a result of an alleged violation of this chapter. A temporary injunction may only be issued ex parte, if the complaint filed with the commission alleges discrimination in housing. In all other cases a temporary injunction may be issued only after the respondent has been notified and afforded the opportunity to be heard.

5. To hold hearings upon any complaint made against a person, an employer, an employment agency, or a labor organization, or the employees or members thereof, to subpoena witnesses and compel their attendance at such hearings, to administer oaths and take the testimony of any person under oath, and to compel such person, employer, employment agency, or labor organization, or employees or members thereof to produce for examination any books and papers relating to any matter involved in such complaint. The commission shall issue subpoenas for witnesses in the same manner and for the same purposes on behalf of the respondent upon the respondent's request. Such hearings may be held by the commission, by any commissioner, or by any hearing examiner appointed by the commission. If a witness either fails or refuses to obey a subpoena issued by the commission, the commission may petition the district court having jurisdiction for issuance of a subpoena and the court shall in a proper case issue the subpoena. Refusal to obey such subpoena shall be subject to punishment for contempt.

6. To issue such publications and reports of investigations and research as in the judgment of the commission shall tend to promote goodwill among the various racial, religious, and ethnic groups of the state and which shall tend to minimize or eliminate discrimination in public accommodations, employment, apprenticeship and on-the-job training programs, vocational schools, or housing because of race, creed, color, sex, sexual orientation, gender identity, national origin, religion, ancestry, or disability.

7. To prepare and transmit to the governor and to the general assembly from time to time, but not less often than once each year, reports describing its proceedings, investigations, hearings conducted and the outcome thereof, decisions rendered, and the other work performed by the commission.

8. To make recommendations to the general assembly for such further legislation concerning discrimination because of race, creed, color, sex, sexual orientation, gender identity, national origin, religion, ancestry, or disability as it may deem necessary and desirable.

9. To cooperate, within the limits of any appropriations made for its operation, with other agencies or organizations, both public and private, whose purposes are consistent with those of this chapter, and in the planning and conducting of programs designed to eliminate racial, religious, cultural, and intergroup tensions.

10. To adopt, publish, amend, and rescind regulations consistent with and necessary for the enforcement of this chapter.

11. To receive, administer, dispense and account for any funds that may be voluntarily contributed to the commission and any grants that may be awarded the commission for furthering the purposes of this chapter.

12. To defer a complaint to a local civil rights commission under commission rules promulgated pursuant to chapter 17A.

13. To issue subpoenas and order discovery as provided by this section in aid of investigations and hearings of alleged unfair or discriminatory housing or real property practices. The subpoenas and discovery may be ordered to the same extent and are subject to the same limitations as subpoenas and discovery in a civil action in district court.

14. To defer proceedings and refer a complaint to a local commission that has been recognized by the United States department of housing and urban development as having adopted ordinances providing fair housing rights and remedies that are substantially equivalent to those granted under federal law.

15. To utilize volunteers to aid in the conduct of the commission's business including case processing functions such as intake, screening, investigation, and mediation.

[C66, 71, §105A.5; C73, 75, 77, 79, 81, §601A.5]

86 Acts, ch 1245, §1991; 91 Acts, ch 184, §2

C93, §216.5

95 Acts, ch 129, §3, 4; 2007 Acts, ch 191, §2

216.6 Unfair employment practices.

1. It shall be an unfair or discriminatory practice for any:

a. Person to refuse to hire, accept, register, classify, or refer for employment, to discharge any employee, or to otherwise discriminate in employment against any applicant for employment or any employee because of the age, race, creed, color, sex, sexual orientation, gender identity, national origin, religion, or disability of such applicant or employee, unless based upon the nature of the occupation. If a person with a disability is qualified to perform a particular occupation, by reason of training or experience, the nature of that occupation shall not be the basis for exception to the unfair or discriminating practices prohibited by this subsection.

b. Labor organization or the employees, agents, or members thereof to refuse to admit to membership any applicant, to expel any member, or to otherwise discriminate against any applicant for membership or any member in the privileges, rights, or benefits of such membership because of the age, race, creed, color, sex, sexual orientation, gender identity, national origin, religion, or disability of such applicant or member.

c. Employer, employment agency, labor organization, or the employees, agents, or members thereof to directly or indirectly advertise or in any other manner indicate or publicize that individuals of any particular age, race, creed, color, sex, sexual orientation, gender identity, national origin, religion, or disability are unwelcome, objectionable, not acceptable, or not solicited for employment or membership unless based on the nature of the occupation.

(1) If a person with a disability is qualified to perform a particular occupation by reason of training or experience, the nature of that occupation shall not be the basis for exception to the unfair or discriminating practices prohibited by this subsection.

(2) An employer, employment agency, or their employees, servants, or agents may offer employment or advertise for employment to only persons with disabilities, when other applicants have available to them other employment compatible with their ability which would not be available to persons with disabilities because of their disabilities. Any such employment or offer of employment shall not discriminate among persons with disabilities on the basis of race, color, creed, sex, sexual orientation, gender identity, or national origin.

d. Person to solicit or require as a condition of employment of any employee or prospective employee a test for the presence of the antibody to the human immunodeficiency virus or to affect the terms, conditions, or privileges of employment or terminate the employment of any employee solely as a result of the employee obtaining a test for the presence of the antibody to the human immunodeficiency virus. An agreement between an employer, employment agency, labor organization, or their employees, agents, or members and an employee or prospective employee concerning employment, pay, or benefits to an employee or prospective employee in return for taking a test for the presence of the antibody to the human immunodeficiency virus, is prohibited. The prohibitions of this paragraph do not apply if the state epidemiologist determines and the director of public health declares through the utilization of guidelines established by the center for disease control of the United States department of health and human services, that a person with a condition related to acquired immune deficiency syndrome poses a significant risk of transmission of the human immunodeficiency virus to other persons in a specific occupation.

2. Employment policies relating to pregnancy and childbirth shall be governed by the following:

a. A written or unwritten employment policy or practice which excludes from employment applicants or employees because of the employee's pregnancy is a prima facie violation of this chapter.

b. Disabilities caused or contributed to by the employee's pregnancy, miscarriage, childbirth, and recovery therefrom are, for all job-related purposes, temporary disabilities and shall be treated as such under any health or temporary disability insurance or sick leave plan available in connection with employment. Written and unwritten employment policies and practices involving matters such as the commencement and duration of leave, the availability of extensions, the accrual of seniority, and other benefits and privileges, reinstatement, and payment under any health or temporary disability insurance or sick leave plan, formal or informal, shall be applied to a disability due to the employee's pregnancy or giving birth, on the same terms and conditions as they are applied to other temporary disabilities.

c. Disabilities caused or contributed to by legal abortion and recovery therefrom are, for all job-related purposes, temporary disabilities and shall be treated as such under any temporary disability or sick leave plan available in connection with employment. Written and unwritten employment policies and practices involving matters such as the commencement and duration of leave, the availability of extensions, the accrual of seniority, and other benefits and privileges, reinstatement, and payment under any temporary disability insurance or sick leave plan, formal or informal, shall be applied to a disability due to legal abortion on the same terms and conditions as they are applied to other temporary disabilities. The employer may elect to exclude health insurance coverage for abortion from a plan provided by the employer, except where the life of the mother would be endangered if the fetus were carried to term or where medical complications have arisen from an abortion.

d. An employer shall not terminate the employment of a person disabled by pregnancy because of the employee's pregnancy.

e. Where a leave is not available or a sufficient leave is not available under any health or temporary disability insurance or sick leave plan available in connection with employment, the employer of the pregnant employee shall not refuse to grant to the employee who is disabled by the pregnancy a leave of absence if the leave of absence is for the period that the employee is disabled because of the employee's pregnancy, childbirth, or related medical conditions, or for eight weeks, whichever is less. However, the employee must provide timely notice of the period of leave requested and the employer must approve any change in the period requested before the change is effective. Before granting the leave of absence, the employer may require that the employee's disability resulting from pregnancy be verified by medical certification stating that the employee is not able to reasonably perform the duties of employment.

3. This section shall not prohibit discrimination on the basis of age if the person subject to the discrimination is under the age of eighteen years, unless that person is considered by law to be an adult.

4. Notwithstanding the provisions of this section, a state or federal program designed to benefit a specific age classification which serves a bona fide public purpose shall be permissible.

5. This section shall not apply to age discrimination in bona fide apprenticeship employment programs if the employee is over forty-five years of age.

6. This section shall not apply to:

a. Any employer who regularly employs less than four individuals. For purposes of this subsection, individuals who are members of the employer's family shall not be counted as employees.

b. The employment of individuals for work within the home of the employer if the employer or members of the employer's family reside therein during such employment.

c. The employment of individuals to render personal service to the person of the employer or members of the employer's family.

d. Any bona fide religious institution or its educational facility, association, corporation, or society with respect to any qualifications for employment based on religion, sexual orientation, or gender identity when such qualifications are related to a bona fide religious purpose. A religious qualification for instructional personnel or an administrative officer, serving in a supervisory capacity of a bona fide religious educational facility or religious institution, shall be presumed to be a bona fide occupational qualification.

[C66, 71, §105A.7; C73, §601A.7; C75, 77, 79, 81, §601A.6]

87 Acts, ch 201, §1; 88 Acts, ch 1236, §2

C93, §216.6

96 Acts, ch 1129, §27, 113; 2007 Acts, ch 191, §3, 4; 2009 Acts, ch 41, §220

See also §139A.13A, 915.23

Subsection 1, paragraph c amended

216.6A Additional unfair or discriminatory practice - wage discrimination in employment.

1. a. The general assembly finds that the practice of discriminating against any employee because of the age, race, creed, color, sex, sexual orientation, gender identity, national origin, religion, or disability of such employee by paying wages to such employee at a rate less than the rate paid to other employees does all of the following:

(1) Unjustly discriminates against the person receiving the lesser rate.

(2) Leads to low employee morale, high turnover, and frequent labor unrest.

(3) Discourages employees paid at lesser wage rates from training for higher level jobs.

(4) Curtails employment opportunities, decreases employees' mobility, and increases labor costs.

(5) Impairs purchasing power and threatens the maintenance of an adequate standard of living by such employees and their families.

(6) Prevents optimum utilization of the state's available labor resources.

(7) Threatens the well-being of citizens of this state and adversely affects the general welfare.

b. The general assembly declares that it is the policy of this state to correct and, as rapidly as possible, to eliminate, discriminatory wage practices based on age, race, creed, color, sex, sexual orientation, gender identity, national origin, religion, and disability.

2. a. It shall be an unfair or discriminatory practice for any employer or agent of any employer to discriminate against any employee because of the age, race, creed, color, sex, sexual orientation, gender identity, national origin, religion, or disability of such employee by paying wages to such employee 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, and which are performed under similar working conditions. An employer or agent of an employer who is paying wages to an employee at a rate less than the rate paid to other employees in violation of this section shall not remedy the violation by reducing the wage rate of any employee.

b. For purposes of this subsection, an unfair or discriminatory practice occurs when a discriminatory pay decision or other practice is adopted, when an individual becomes subject to a discriminatory pay decision or other practice, or when an individual is affected by application of a discriminatory pay decision or other practice, including each time wages, benefits, or other compensation is paid, resulting in whole or in part from such a decision or other practice.

3. It shall be an affirmative defense for a claim arising under this section if any of the following applies:

a. Payment of wages is made pursuant to a seniority system.

b. Payment of wages is made pursuant to a merit system.

c. Payment of wages is made pursuant to a system which measures earnings by quantity or quality of production.

d. Pay differential is based on any other factor other than the age, race, creed, color, sex, sexual orientation, gender identity, national origin, religion, or disability of such employee.

4. This section shall not apply to any employer who regularly employs less than four individuals. For purposes of this subsection, individuals who are members of the employer's family shall not be counted as employees.

2009 Acts, ch 96, §2

NEW section

216.7 Unfair practices - accommodations or services.

1. It shall be an unfair or discriminatory practice for any owner, lessee, sublessee, proprietor, manager, or superintendent of any public accommodation or any agent or employee thereof:

a. To refuse or deny to any person because of race, creed, color, sex, sexual orientation, gender identity, national origin, religion, or disability the accommodations, advantages, facilities, services, or privileges thereof, or otherwise to discriminate against any person because of race, creed, color, sex, sexual orientation, gender identity, national origin, religion, or disability in the furnishing of such accommodations, advantages, facilities, services, or privileges.

b. To directly or indirectly advertise or in any other manner indicate or publicize that the patronage of persons of any particular race, creed, color, sex, sexual orientation, gender identity, national origin, religion, or disability is unwelcome, objectionable, not acceptable, or not solicited.

2. This section shall not apply to:

a. Any bona fide religious institution with respect to any qualifications the institution may impose based on religion, sexual orientation, or gender identity when such qualifications are related to a bona fide religious purpose.

b. The rental or leasing to transient individuals of less than six rooms within a single housing accommodation by the occupant or owner of such housing accommodation if the occupant or owner or members of that person's family reside therein.

[C97, §5008; C24, 27, 31, 35, 39, §13251; C46, 50, 54, 58,

§735.1; C66, 71, §105A.6; C73, §601A.6; C75, 77, 79, 81, §601A.7]

C93, §216.7

2007 Acts, ch 191, §5, 6

216.8 Unfair or discriminatory practices - housing.

1. It shall be an unfair or discriminatory practice for any person, owner, or person acting for an owner, of rights to housing or real property, with or without compensation, including but not limited to persons licensed as real estate brokers or salespersons, attorneys, auctioneers, agents or representatives by power of attorney or appointment, or any person acting under court order, deed of trust, or will:

a. To refuse to sell, rent, lease, assign, sublease, refuse to negotiate, or to otherwise make unavailable, or deny any real property or housing accommodation or part, portion, or interest therein, to any person because of the race, color, creed, sex, sexual orientation, gender identity, religion, national origin, disability, or familial status of such person.

b. To discriminate against any person because of the person's race, color, creed, sex, sexual orientation, gender identity, religion, national origin, disability, or familial status, in the terms, conditions, or privileges of the sale, rental, lease assignment, or sublease of any real property or housing accommodation or any part, portion, or interest in the real property or housing accommodation or in the provision of services or facilities in connection with the real property or housing accommodation.

c. To directly or indirectly advertise, or in any other manner indicate or publicize that the purchase, rental, lease, assignment, or sublease of any real property or housing accommodation or any part, portion, or interest therein, by persons of any particular race, color, creed, sex, sexual orientation, gender identity, religion, national origin, disability, or familial status is unwelcome, objectionable, not acceptable, or not solicited.

d. To discriminate against the lessee or purchaser of any real property or housing accommodation or part, portion, or interest of the real property or housing accommodation, or against any prospective lessee or purchaser of the property or accommodation, because of the race, color, creed, religion, sex, sexual orientation, gender identity, disability, age, or national origin of persons who may from time to time be present in or on the lessee's or owner's premises for lawful purposes at the invitation of the lessee or owner as friends, guests, visitors, relatives, or in any similar capacity.

2. For purposes of this section, "person" means one or more individuals, corporations, partnerships, associations, labor organizations, legal representatives, mutual companies, joint stock companies, trusts, unincorporated organizations, trustees, trustees in cases under Tit. eleven of the United States Code, receivers, and fiduciaries.

[C71, §105A.13; C73, §601A.13; C75, 77, 79, 81, §601A.8]

89 Acts, ch 205, §2; 92 Acts, ch 1129, §4

C93, §216.8

2007 Acts, ch 191, §7; 2009 Acts, ch 41, §86

Section amended

216.8A Additional unfair or discriminatory practices - housing.

1. A person shall not induce or attempt to induce another person to sell or rent a dwelling by representations regarding the entry or prospective entry into a neighborhood of a person of a particular race, color, creed, sex, sexual orientation, gender identity, religion, national origin, disability, or familial status.

2. A person shall not represent to a person of a particular race, color, creed, sex, sexual orientation, gender identity, religion, national origin, disability, or familial status that a dwelling is not available for inspection, sale, or rental when the dwelling is available for inspection, sale, or rental.

3. a. A person shall not discriminate in the sale or rental or otherwise make unavailable or deny a dwelling to a buyer or renter because of a disability of any of the following persons:

(1) That buyer or renter.

(2) A person residing in or intending to reside in that dwelling after it is sold, rented, or made available.

(3) A person associated with that buyer or renter.

b. A person shall not discriminate against another person in the terms, conditions, or privileges of sale or rental of a dwelling or in the provision of services or facilities in connection with the dwelling because of a disability of any of the following persons:

(1) That person.

(2) A person residing in or intending to reside in that dwelling after it is sold, rented, or made available.

(3) A person associated with that person.

c. For the purposes of this subsection only, discrimination includes any of the following circumstances:

(1) A refusal to permit, at the expense of the person with a disability, reasonable modifications of existing premises occupied or to be occupied by the person if the modifications are necessary to afford the person full enjoyment of the premises. However, it is not discrimination for a landlord, in the case of a rental and where reasonable to do so, to condition permission for a modification on the renter's agreement to restore the interior of the premises to the condition that existed before the modification, reasonable wear and tear excepted.

(2) A refusal to make reasonable accommodations in rules, policies, practices, or services, when the accommodations are necessary to afford the person equal opportunity to use and enjoy a dwelling.

(3) In connection with the design and construction of covered multifamily dwellings for first occupancy after January 1, 1992, a failure to design and construct those dwellings in a manner that meets the following requirements:

(a) The public use and common use portions of the dwellings are readily accessible to and usable by persons with disabilities.

(b) All doors designed to allow passage into and within all premises within the dwellings are sufficiently wide to allow passage by persons with disabilities in wheelchairs.

(c) All premises within the dwellings contain the following features of adaptive design:

(i) An accessible route into and through the dwelling.

(ii) Light switches, electrical outlets, thermostats, and other environmental controls in accessible locations.

(iii) Reinforcements in bathroom walls to allow later installation of grab bars.

(iv) Usable kitchens and bathrooms so that a person in a wheelchair can maneuver about the space.

d. Compliance with the appropriate requirements of the American national standard for buildings and facilities providing accessibility and usability for persons with disabilities, commonly cited as "ANSI A 117.1", satisfies the requirements of paragraph "c", subparagraph (3), subparagraph division (c).

e. Nothing in this subsection requires that a dwelling be made available to a person whose tenancy would constitute a direct threat to the health or safety of other persons or whose tenancy would result in substantial physical damage to the property of others.

4. a. A person whose business includes engaging in residential real estate related transactions shall not discriminate against a person in making a residential real estate related transaction available or in terms or conditions of a residential real estate related transaction because of race, color, creed, sex, sexual orientation, gender identity, religion, national origin, disability, or familial status.

b. For the purpose of this subsection, "residential real estate related transaction" means any of the following:

(1) To make or purchase loans or provide other financial assistance to purchase, construct, improve, repair, or maintain a dwelling, or to secure residential real estate.

(2) To sell, broker, or appraise residential real estate.

5. A person shall not deny another person access to, or membership or participation in, a multiple-listing service, real estate brokers' organization or other service, organization, or facility relating to the business of selling or renting dwellings, or discriminate against a person in terms or conditions of access, membership, or participation in such organization because of race, color, creed, sex, sexual orientation, gender identity, religion, national origin, disability, or familial status.

91 Acts, ch 184, §3

CS91, §601A.8A

C93, §216.8A

96 Acts, ch 1129, §28, 113; 2007 Acts, ch 191, §8 - 10; 2009 Acts, ch 41, §263; 2009 Acts, ch 133, §82

Internal reference change applied pursuant to Code editor directive

Subsection 3, paragraph c, subparagraph (1) amended

216.9 Unfair or discriminatory practices - education.

1. It is an unfair or discriminatory practice for any educational institution to discriminate on the basis of race, creed, color, sex, sexual orientation, gender identity, national origin, religion, or disability in any program or activity. Such discriminatory practices shall include but not be limited to the following practices:

a. Exclusion of a person or persons from participation in, denial of the benefits of, or subjection to discrimination in any academic, extracurricular, research, occupational training, or other program or activity except athletic programs;

b. Denial of comparable opportunity in intramural and interscholastic athletic programs;

c. Discrimination among persons in employment and the conditions of employment;

d. On the basis of sex, the application of any rule concerning the actual or potential parental, family or marital status of a person, or the exclusion of any person from any program or activity or employment because of pregnancy or related conditions dependent upon the physician's diagnosis and certification.

2. For the purpose of this section, "educational institution" includes any preschool, elementary or secondary school, community college, area education agency, or postsecondary college or university and their governing boards. This section does not prohibit an educational institution from maintaining separate toilet facilities, locker rooms, or living facilities for the different sexes so long as comparable facilities are provided. Nothing in this section shall be construed as prohibiting any bona fide religious institution from imposing qualifications based on religion, sexual orientation, or gender identity when such qualifications are related to a bona fide religious purpose or any institution from admitting students of only one sex.

[C79, 81, §601A.9]

85 Acts, ch 214, §1; 86 Acts, ch 1245, §1496; 90 Acts, ch 1253, §121

C93, §216.9

2007 Acts, ch 191, §11, 12; 2008 Acts, ch 1032, §36

216.10 Unfair credit practices.

1. It shall be an unfair or discriminatory practice for any:

a. Creditor to refuse to enter into a consumer credit transaction or impose finance charges or other terms or conditions more onerous than those regularly extended by that creditor to consumers of similar economic backgrounds because of age, color, creed, national origin, race, religion, marital status, sex, sexual orientation, gender identity, physical disability, or familial status.

b. Person authorized or licensed to do business in this state pursuant to chapter 524, 533, 534, 536, or 536A to refuse to loan or extend credit or to impose terms or conditions more onerous than those regularly extended to persons of similar economic backgrounds because of age, color, creed, national origin, race, religion, marital status, sex, sexual orientation, gender identity, physical disability, or familial status.

c. Creditor to refuse to offer credit life or health and accident insurance because of color, creed, national origin, race, religion, marital status, age, physical disability, sex, sexual orientation, gender identity, or familial status. Refusal by a creditor to offer credit life or health and accident insurance based upon the age or physical disability of the consumer shall not be an unfair or discriminatory practice if such denial is based solely upon bona fide underwriting considerations not prohibited by title XIII, subtitle 1.

2. The provisions of this section shall not be construed by negative implication or otherwise to narrow or restrict any other provisions of this chapter.

[C75, 77, §601A.9; C79, 81, §601A.10]

90 Acts, ch 1212, §1

C93, §216.10

2007 Acts, ch 191, §13

See also §507B.4 and 537.3311

216.11 Aiding, abetting, or retaliation.

It shall be an unfair or discriminatory practice for:

1. Any person to intentionally aid, abet, compel, or coerce another person to engage in any of the practices declared unfair or discriminatory by this chapter.

2. Any person to discriminate or retaliate against another person in any of the rights protected against discrimination by this chapter because such person has lawfully opposed any practice forbidden under this chapter, obeys the provisions of this chapter, or has filed a complaint, testified, or assisted in any proceeding under this chapter.

[C66, 71, §105A.8; C73, §601A.8; C75, 77, §601A.10; C79, 81, §601A.11]

91 Acts, ch 94, §1

C93, §216.11

216.11A Interference, coercion, or intimidation.

It shall be unlawful to coerce, intimidate, threaten, or interfere with any person in the exercise or enjoyment of, on account of the person having exercised or enjoyed, or on account of the person having aided or encouraged any other person in the exercise or enjoyment of, any right granted or protected by section

216.8, 216.8A, or 216.15A.

91 Acts, ch 184, §4

CS91, §601A.11A

92 Acts, ch 1129, §5

C93, §216.11A

216.12 Exceptions.

1. The provisions of sections 216.8 and 216.8A shall not apply to:

a. Any bona fide religious institution with respect to any qualifications it may impose based on religion, sexual orientation, or gender identity, when the qualifications are related to a bona fide religious purpose unless the religious institution owns or operates property for a commercial purpose or membership in the religion is restricted on account of race, color, or national origin.

b. The rental or leasing of a dwelling in a building which contains housing accommodations for not more than two families living independently of each other, if the owner resides in one of the housing accommodations.

c. The rental or leasing of less than four rooms within a single dwelling by the occupant or owner of the dwelling, if the occupant or owner resides in the dwelling.

d. Discrimination on the basis of familial status involving dwellings provided under any state or federal program specifically designed and operated to assist elderly persons, as defined in the state or federal program that the commission determines to be consistent with determinations made by the United States secretary of housing and urban development, and housing for older persons. As used in this paragraph, "housing for older persons" means housing communities consisting of dwellings intended for either of the following:

(1) For eighty percent occupancy by at least one person fifty-five years of age or older per unit, and providing significant facilities and services specifically designed to meet the physical or social needs of the persons and the housing facility must publish and adhere to policies and procedures which demonstrate an intent by the owner or manager to provide housing for persons fifty-five years of age or older.

(2) For and occupied solely by persons sixty-two years of age or older.

e. The rental or leasing of a housing accommodation in a building which contains housing accommodations for not more than four families living independently of each other, if the owner resides in one of the housing accommodations for which the owner qualifies for the homestead tax credit under section 425.1.

f. Discrimination on the basis of sex involving the rental, leasing, or subleasing of a dwelling within which residents of both sexes would be forced to share a living area.

2. The exceptions to the requirements of sections 216.8 and 216.8A provided for dwellings specified in subsection 1, paragraphs "b", "c", and "e", do not apply to advertising related to those dwellings.

[C71, §105A.14; C73, §601A.14; C75, 77, §601A.11; C79, 81, §601A.12]

89 Acts, ch 205, §3, 4; 91 Acts, ch 184, §5 - 7; 92 Acts, ch 1129, §6 - 9

C93, §216.12

95 Acts, ch 129, §5 - 7; 2007 Acts, ch 191, §14

216.12A Additional housing exception.

Sections 216.8 and 216.8A do not prohibit a person engaged in the business of furnishing appraisals of real estate from taking into consideration factors other than race, color, creed, sex, sexual orientation, gender identity, religion, national origin, disability, or familial status in appraising real estate.

91 Acts, ch 184, §8

CS91, §601A.12A

92 Acts, ch 1129, §10

C93, §216.12A

2007 Acts, ch 191, §15

216.13 Exceptions for retirement plans, abortion coverage, life, disability, and health benefits.

The provisions of this chapter relating to discrimination because of age do not apply to a retirement plan or benefit system of an employer unless the plan or system is a mere subterfuge adopted for the purpose of evading this chapter.

1. However, a retirement plan or benefit system shall not require the involuntary retirement of a person under the age of seventy because of that person's age. This paragraph does not prohibit the following:

a. The involuntary retirement of a person who has attained the age of sixty-five and has for the two prior years been employed in a bona fide executive or high policymaking position and who is entitled to an immediate, nonforfeitable annual retirement benefit from a pension, profit-sharing, savings, or deferred compensation plan of the employer which equals twenty-seven thousand dollars. This retirement benefit test may be adjusted according to the regulations prescribed by the United States secretary of labor pursuant to Pub. L. No. 95-256, section 3.

b. The involuntary retirement of a person covered by a collective bargaining agreement which was entered into by a labor organization and was in effect on September 1, 1977. This exemption does not apply after the termination of that agreement or January 1, 1980, whichever first occurs.

2. A health insurance program provided by an employer may exclude coverage of abortion, except where the life of the mother would be endangered if the fetus were carried to term or where medical complications have arisen from an abortion.

3. An employee welfare plan may provide life, disability or health insurance benefits which vary by age based on actuarial differences if the employer contributes equally for all the participating employees or may provide for employer contributions differing by age if the benefits for all the participating employees do not vary by age.

[C71, §105A.15; C73, §601A.15; C75, 77, §601A.12; C79, 81, §601A.13]

84 Acts, ch 1011, §1

C93, §216.13

2006 Acts, ch 1010, §65

216.14 Promotion or transfer.

After a person with a disability is employed, the employer shall not be required under this chapter to promote or transfer the person to another job or occupation, unless, prior to the transfer, the person with the disability, by training or experience, is qualified for the job or occupation. Any collective bargaining agreement between an employer and labor organization shall contain this section as part of the agreement.

[C73, §601A.16; C75, 77, §601A.13; C79, 81, §601A.14]

C93, §216.14

96 Acts, ch 1129, §29

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.

[C66, 71, §105A.9; C73, §601A.9; C75, 77, §601A.14; C79, 81, §601A.15]

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

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

Subsection 3, paragraph a amended

NEW subsection 4 and former subsections 4 - 13 renumbered as 5 - 14

Subsection 9, paragraph a, NEW subparagraph (9)

216.15A Additional proceedings - housing discrimination.

1. a. The commission may join a person not named in the complaint as an additional or substitute respondent if in the course of the investigation, the commission determines that the person should be alleged to have committed a discriminatory housing or real estate practice.

b. In addition to the information required in the notice, the commission shall include in a notice to a respondent joined under this subsection an explanation of the basis for the determination under this subsection that the person is properly joined as a respondent.

2. a. The commission shall, during the period beginning with the filing of a complaint and ending with the filing of a charge or a dismissal by the commission, to the extent feasible, engage in mediation with respect to the complaint.

b. A mediation agreement is an agreement between a respondent and the complainant and is subject to commission approval.

c. A mediation agreement may provide for binding arbitration or other method of dispute resolution. Dispute resolution that results from a mediation agreement may authorize appropriate relief, including monetary relief.

d. A mediation agreement shall be made public unless the complainant and respondent agree otherwise, and the commission determines that disclosure is not necessary to further the purposes of this chapter relating to unfair or discriminatory practices in housing or real estate.

e. The proceedings or results of mediation shall not be made public or used as evidence in a subsequent proceeding under this chapter without the written consent of the persons who are party to the mediation.

f. After the completion of the commission's investigation, the commission shall make available to the aggrieved person and the respondent information derived from the investigation and the final investigation report relating to that investigation.

g. When the commission has reasonable cause to believe that a respondent has breached a mediation agreement, the commission shall refer this matter to an assistant attorney general with a recommendation that a civil action be filed for the enforcement of the agreement. The assistant attorney general may commence a civil action in the appropriate district court not later than the expiration of ninety days after referral of the breach.

3. a. If the commission concludes, following the filing of a complaint, that prompt judicial action is necessary to carry out the purposes of this chapter relating to unfair or discriminatory housing or real estate practices, the commission may authorize a civil action for appropriate temporary or preliminary relief pending final disposition of the complaint.

b. On receipt of the commission's authorization, the attorney general shall promptly file the action.

c. A temporary restraining order or other order granting preliminary or temporary relief under this section is governed by the applicable Iowa rules of civil procedure.

d. The filing of a civil action under this section does not affect the initiation or continuation of administrative proceedings in regard to an administrative hearing.

4. a. The commission shall prepare a final investigative report.

b. A final report under this section may be amended by the commission if additional evidence is discovered.

5. a. The commission shall determine based on the facts whether probable cause exists to believe that a discriminatory housing or real estate practice has occurred or is about to occur.

b. The commission shall make its determination under paragraph "a" not later than one hundred days after a complaint is filed unless any of the following applies:

(1) It is impracticable to make the determination within that time period.

(2) The commission has approved a mediation agreement relating to the complaint.

c. If it is impracticable to make the determination within the time period provided by paragraph "b", the commission shall notify the complainant and respondent in writing of the reasons for the delay.

d. If the commission determines that probable cause exists to believe that a discriminatory housing or real estate practice has occurred or is about to occur, the commission shall immediately issue a determination unless the commission determines that the legality of a zoning or land use law or ordinance is involved as provided in subsection 7.

6. a. A determination issued under subsection 5 must include all of the following:

(1) Must consist of a short and plain statement of the facts on which the commission has found probable cause to believe that a discriminatory housing or real estate practice has occurred or is about to occur.

(2) Must be based on the final investigative report.

(3) Need not be limited to the facts or grounds alleged in the complaint.

b. Not later than twenty days after the commission issues a determination, the commission shall send a copy of the determination with information concerning the election under section 216.16A to all of the following persons:

(1) Each respondent, together with a notice of the opportunity for a hearing as provided under subsection 10.

(2) Each aggrieved person on whose behalf the complaint was filed.

7. If the commission determines that the matter involves the legality of a state or local zoning or other land use ordinance, the commission shall not issue a determination and shall immediately refer the matter to the attorney general for appropriate action.

8. a. If the commission determines that no probable cause exists to believe that a discriminatory housing or real estate practice has occurred or is about to occur, the commission shall promptly dismiss the complaint.

b. The commission shall make public disclosure of each dismissal under this section.

9. The commission shall not issue a determination under this section regarding an alleged discriminatory housing or real estate practice after the beginning of the trial of a civil action commenced by the aggrieved party under federal or state law seeking relief with respect to that discriminatory housing or real estate practice.

10. a. If a timely election is not made under section 216.16A, the commission shall provide for a hearing on the charges in the complaint.

b. Except as provided by paragraph "c", the hearing shall be conducted in accordance with chapter 17A for contested cases.

c. A hearing under this section shall not be continued regarding an alleged discriminatory housing or real estate practice after the beginning of the trial of a civil action commenced by the aggrieved person under federal or state law seeking relief with respect to that discriminatory housing or real estate practice.

11. a. If the commission determines at a hearing under subsection 10 that a respondent has engaged or is about to engage in a discriminatory housing or real estate practice, the commission may order the appropriate relief, including actual damages, reasonable attorney fees, court costs, and other injunctive or equitable relief.

b. To vindicate the public interest, the commission may assess a civil penalty against the respondent in an amount that does not exceed the following applicable amount:

(1) Ten thousand dollars if the respondent has not been adjudged by the order of the commission or a court to have committed a prior discriminatory housing or real estate practice.

(2) Except as provided by paragraph "c", twenty-five thousand dollars if the respondent has been adjudged by order of the commission or a court to have committed one other discriminatory housing or real estate practice during the five-year period ending on the date of the filing of the complaint.

(3) Except as provided by paragraph "c", fifty thousand dollars if the respondent has been adjudged by order of the commission or a court to have committed two or more discriminatory housing or real estate practices during the seven-year period ending on the date of the filing of the complaint.

c. If the acts constituting the discriminatory housing or real estate practice that is the object of the complaint are committed by the same natural person who has been previously adjudged to have committed acts constituting a discriminatory housing or real estate practice, the civil penalties in paragraph "b", subparagraphs (2) and (3) may be imposed without regard to the period of time within which any other discriminatory housing or real estate practice occurred.

d. At the request of the commission, the attorney general shall initiate legal proceedings to recover a civil penalty due under this section. Funds collected under this section shall be paid to the treasurer of state for deposit in the state treasury to the credit of the general fund.

12. This section applies only to the following:

a. Complaints which allege a violation of the prohibitions contained in section 216.8 or 216.8A.

b. Complaints which allege a violation of section 216.11 or 216.11A arising out of alleged violations of the prohibitions contained in section 216.8 or 216.8A.

13. If a provision of this section applies under the terms of subsection 12, and the provision of this section conflicts with a provision of section 216.15, then the provision contained within this section shall prevail. Similarly, if a provision of section 216.16A or 216.17A conflicts with a provision of section 216.16 or 216.17, then the provision contained in section 216.16A or 216.17A shall prevail.

91 Acts, ch 184, §9

CS91, §601A.15A

92 Acts, ch 1129, §11, 12; 92 Acts, ch 1163, §108

C93, §216.15A

2001 Acts, ch 24, §38

216.15B Formal mediation - confidentiality.

1. A mediator may be designated in writing by the commission to conduct formal mediation of a complaint filed under this chapter. The written designation must specifically refer to this section.

2. If formal mediation is conducted by a mediator pursuant to this section, the confidentiality of all mediation communications is protected as provided in section 679C.108.

95 Acts, ch 129, §12; 98 Acts, ch 1062, §10; 99 Acts, ch 114, §12; 2001 Acts, ch 71, §1; 2005 Acts, ch 68, §3

216.16 Sixty-day administrative release.

1. 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 in accordance with section 216.15. This provision also applies to persons claiming to be aggrieved by an unfair or discriminatory practice committed by the state or an agency or political subdivision of the state, notwithstanding the terms of the Iowa administrative procedure Act, chapter 17A.

2. After the proper filing of a complaint with the commission, a complainant may subsequently commence an action for relief in the district court if all of the following conditions have been satisfied:

a. The complainant has timely filed the complaint with the commission as provided in section 216.15, subsection 13.

b. The complaint has been on file with the commission for at least sixty days and the commission has issued a release to the complainant pursuant to subsection 3.

3. a. Upon a request by the complainant, and after the expiration of sixty 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 any of the following apply:

(1) A finding of no probable cause has been made on the complaint by the administrative law judge charged with that duty under section 216.15, subsection 3.

(2) A conciliation agreement has been executed under section 216.15.

(3) The commission has served notice of hearing upon the respondent pursuant to section 216.15, subsection 6.

(4) The complaint is closed as an administrative closure and two years have elapsed since the issuance date of the closure.

b. Notwithstanding section 216.15, subsection 5, a party may obtain a copy of all documents contained in a case file where the commission has issued a release to the complainant pursuant to this subsection.

4. An action authorized under this section is barred unless commenced within ninety days after issuance by the commission of a release under subsection 3. If a complainant obtains a release from the commission under subsection 3, the commission is barred from further action on that complaint.

5. Venue for an action under this section 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.

6. The district court may grant any relief in an action under this section which is authorized by section 216.15, subsection 9, to be issued by the commission. 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.

7. It is the legislative intent of this chapter that every complaint be at least preliminarily screened during the first one hundred twenty days.

8. This section does not authorize administrative closures if an investigation is warranted.

[C79, 81, §601A.16]

84 Acts, ch 1096, §2; 85 Acts, ch 197, §10; 86 Acts, ch 1245, §263; 88 Acts, ch 1109, §29; 90 Acts, ch 1040, §1, 2

C93, §216.16

2003 Acts, ch 44, §114; 2009 Acts, ch 41, §221; 2009 Acts, ch 133, §83

For provision governing conflicts between this section and section 216.16A, see §216.15A, subsection 13

See Code editor's note

Section amended

216.16A Civil action elected - housing.

1. a. A complainant, a respondent, or an aggrieved person on whose behalf the complaint was filed may elect to have the charges asserted in the complaint decided in a civil action as provided by section 216.17A.

b. The election must be made not later than twenty days after the date of receipt by the electing person of service under section 216.15A, subsection 5, or in the case of the commission, not later than twenty days after the date the determination was issued.

c. The person making the election shall give notice to the commission and to all other complainants and respondents to whom the election relates.

d. The election to have the charges of a complaint decided in a civil action as provided in paragraph "a" is only available if one of the following is alleged:

(1) It is alleged that there has been a violation of section 216.8 or 216.8A.

(2) It is alleged that there has been a violation of section 216.11 or 216.11A arising out of an alleged violation of the prohibitions contained in section 216.8 or 216.8A.

2. a. An aggrieved person may file a civil action in district court not later than two years after the occurrence of the termination of an alleged discriminatory housing or real estate practice, or the breach of a mediation agreement entered into under this chapter, whichever occurs last, to obtain appropriate relief with respect to the discriminatory housing or real estate practice or breach.

b. The two-year period does not include any time during which an administrative hearing under this chapter is pending with respect to a complaint or charge based on the discriminatory housing or real estate practice. This subsection does not apply to actions arising from a breach of a mediation agreement.

c. An aggrieved person may file an action under this subsection whether or not a discriminatory housing or real estate complaint has been filed under section 216.15, and without regard to the status of any discriminatory housing or real estate complaint filed under that section.

d. If the commission has obtained a mediation agreement with the consent of an aggrieved person, the aggrieved person shall not file an action under this subsection with respect to the alleged discriminatory practice that forms the basis for the complaint except to enforce the terms of the agreement.

e. An aggrieved person shall not file an action under this subsection with respect to an alleged discriminatory housing or real estate practice that forms the basis of a charge issued by the commission if the commission has begun a hearing on the record under this chapter with respect to the charge.

f. In an action filed in district court under this subsection, the court may, upon a finding of discrimination, order any of the remedies provided for in section 216.17A, subsection 6.

91 Acts, ch 184, §10

CS91, §601A.16A

92 Acts, ch 1129, §13, 14

C93, §216.16A

95 Acts, ch 129, §13, 14

216.17 Judicial review - enforcement.

1. a. Judicial review of the actions of the commission may be sought in accordance with the terms of the Iowa administrative procedure Act, chapter 17A. Notwithstanding the terms of said Act, petition for judicial review may be filed in the district court in which an enforcement proceeding under subsection 2 may be brought.

b. For purposes of the time limit for filing a petition for judicial review under the Iowa administrative procedure Act, chapter 17A, specified by section 17A.19, the issuance of a final decision of the commission under this chapter occurs on the date notice of the decision is mailed to the parties.

c. Notwithstanding the time limit provided in section 17A.19, subsection 3, a petition for judicial review of no-probable-cause decisions and other final agency actions which are not of general applicability must be filed within thirty days of the issuance of the final agency action.

2. The commission may obtain an order of court for the enforcement of commission orders in a proceeding as provided in this section. Such an enforcement proceeding shall be brought in the district court of the district in the county in which the alleged discriminatory or unfair practice which is the subject of the commission's order was committed, or in which any respondent required in the order to cease or desist from a discriminatory or unfair practice or to take other affirmative action, resides, or transacts business.

3. Such an enforcement proceeding shall be initiated by the filing of a petition in such court and the service of a copy thereof upon the respondent. Thereupon the commission shall file with the court a transcript of the record of the hearing before it. The court shall have power to grant such temporary relief or restraining order as it deems just and proper, and to make and enter upon the pleadings, testimony, and proceedings set forth in such transcript an order enforcing, modifying, and enforcing as so modified, or setting aside the order of the commission, in whole or in part.

4. An objection that has not been urged before the commission shall not be considered by the court in an enforcement proceeding, unless the failure or neglect to urge such objection shall be excused because of extraordinary circumstances.

5. Any party to the enforcement proceeding may move the court to remit the case to the commission in the interests of justice for the purpose of adducing additional specified and material evidence and seeking findings thereof, providing such party shall show reasonable grounds for the failure to adduce such evidence before the commission.

6. In the enforcement proceeding the court shall determine its order on the same basis as it would in a proceeding reviewing commission action under section 17A.19.

7. The commission's copy of the testimony shall be available to all parties for examination at all reasonable times, without cost, and for the purpose of judicial review of the commission's orders.

8. The commission may appear in court by its own attorney.

9. Petitions filed under this section shall be heard expeditiously and determined upon the transcript filed without requirement for printing.

10. If no proceeding to obtain judicial review is instituted within thirty days from the issuance of an order of the commission under section 216.15 or 216.15A, the commission may obtain an order of the court for the enforcement of the order upon showing that respondent is subject to the jurisdiction of the commission and resides or transacts business within the county in which the petition for enforcement is brought.

[C66, 71, §105A.10; C73, §601A.10; C75, 77, §601A.15; C79, 81, §601A.17]

83 Acts, ch 57, §1; 92 Acts, ch 1129, §15

C93, §216.17

98 Acts, ch 1202, §37, 46; 2003 Acts, ch 44, §114; 2005 Acts, ch 23, §4; 2009 Acts, ch 41, §263

For provision governing conflicts between this section and section 216.17A, see §216.15A, subsection 13

Subsection 1 redesignated pursuant to Code editor directive

216.17A Civil proceedings - housing.

1. a. If timely election is made under section 216.16A, subsection 1, the commission shall authorize, and not later than thirty days after the election is made, the attorney general shall file a civil action on behalf of the aggrieved person in a district court seeking relief.

b. Venue for an action under this section is in the county in which the respondent resides or has its principal place of business, or in the county in which the alleged discriminatory housing or real estate practice occurred.

c. An aggrieved person may intervene in the action.

d. If the district court finds that a discriminatory housing or real estate practice has occurred or is about to occur, the district court may grant as relief any relief that a court may grant in a civil action under subsection 6.

e. If monetary relief is sought for the benefit of an aggrieved person who does not intervene in the civil action, the district court shall not award the monetary relief if that aggrieved person has not complied with discovery orders entered by the district court.

2. A commission order under section 216.15A, subsection 11, and a commission order that has been substantially affirmed by judicial review, do not affect a contract, sale, encumbrance, or lease that was consummated before the commission issued the order and involved a bona fide purchaser, encumbrancer, or tenant who did not have actual notice of the charge issued under this chapter.

3. If the commission issues an order with respect to a discriminatory housing practice that occurred in the course of a business subject to a licensing or regulation by a governmental agency, the commission, not later than thirty days after the date of issuance of the order, shall do all of the following:

a. Send copies of the findings and the order to the governmental agency.

b. Recommend to the governmental agency appropriate disciplinary action.

4. If the commission issues an order against a respondent against whom another order was issued within the preceding five years under section 216.15A, subsection 11, the commission shall send a copy of each order issued under that section to the attorney general.

5. On application by a person alleging a discriminatory housing practice or by a person against whom a discriminatory practice is alleged, the district court may appoint an attorney for the person.

6. In an action under subsection 1 and section 216.16A, subsection 2, if the district court finds that a discriminatory housing or real estate practice has occurred or is about to occur, the district court may award or issue to the plaintiff one or more of the following:

a. Actual and punitive damages.

b. Reasonable attorney's fees.

c. Court costs.

d. Subject to subsection 7, any permanent or temporary injunction, temporary restraining order, or other order, including an order enjoining the defendant from engaging in the practice or ordering appropriate affirmative action.

7. Relief granted under this section does not affect a contract, sale, encumbrance, or lease that was consummated before the granting of the relief and involved a bona fide purchaser, encumbrancer, or tenant who did not have actual notice of the filing of a complaint under this chapter or a civil action under this section.

8. a. On the request of the commission, the attorney general may intervene in an action under section 216.16A, subsection 2, if the commission certifies that the case is of general public importance.

b. The attorney general may obtain the same relief available to the attorney general under subsection 9.

9. a. On the request of the commission, the attorney general may file a civil action in district court for appropriate relief if the commission has reasonable cause to believe that any of the following applies:

(1) A person is engaged in a pattern or practice of resistance to the full enjoyment of any housing right granted by this chapter.

(2) A person has been denied any housing right granted by this chapter and that denial raises an issue of general public importance.

b. In an action under this subsection and subsection 8, the district court may do any of the following:

(1) Order preventive relief, including a permanent or temporary injunction, restraining order, or other order against the person responsible for a violation of housing rights as necessary to assure the full enjoyment of the housing rights granted by this chapter.

(2) Order another appropriate relief, including the awarding of monetary damages, reasonable attorney's fees, and court costs.

(3) To vindicate the public interest, assess a civil penalty against the respondent in an amount that does not exceed any of the following:

(a) Fifty thousand dollars for a first violation.

(b) One hundred thousand dollars for a second or subsequent violation.

c. A person may intervene in an action under this section if the person is any of the following:

(1) An aggrieved person to the discriminatory housing or real estate practice.

(2) A party to a mediation agreement concerning the discriminatory housing or real estate practice.

10. The attorney general, on behalf of the commission or other party at whose request a subpoena is issued, may enforce the subpoena in appropriate proceedings in district court.

11. A court in a civil action brought under this section or the commission in an administrative hearing under section 216.15A, subsection 11, may award reasonable attorney's fees to the prevailing party and assess court costs against the nonprevailing party.

91 Acts, ch 184, §11

CS91, §601A.17A

92 Acts, ch 1129, §16, 17

C93, §216.17A

95 Acts, ch 129, §15 - 17

216.18 Rules of construction.

1. This chapter shall be construed broadly to effectuate its purposes.

2. This chapter shall not be construed to allow marriage between persons of the same sex, in accordance with chapter 595.

[C66, 71, §105A.11; C73, §601A.11; C75, 77, §601A.16; C79, 81, §601A.18]

C93, §216.18

2009 Acts, ch 133, §192

Unnumbered paragraph 1 designated as subsection 1

Subsection 2 transferred from §216.18A in Code Supplement 2009 pursuant to directive; 2009 Acts, ch 133, §192

216.18A Construction of chapter - marriage.

Transferred to § 216.18, subsection 2; 2009 Acts, ch 133, § 192.

216.19 Local laws implementing this chapter.

1. All cities shall, to the extent possible, protect the rights of the citizens of this state secured by the Iowa civil rights Act. Nothing in this chapter shall be construed as indicating any of the following:

a. An intent on the part of the general assembly to occupy the field in which this chapter operates to the exclusion of local laws not inconsistent with this chapter that deal with the same subject matter.

b. An intent to prohibit an agency or commission of local government having as its purpose the investigation and resolution of violations of this chapter from developing procedures and remedies necessary to insure the protection of rights secured by this chapter.

c. Limiting a city or local government from enacting any ordinance or other law which prohibits broader or different categories of unfair or discriminatory practices.

2. A city with a population of twenty-nine thousand, or greater, shall maintain an independent local civil rights agency or commission consistent with commission rules adopted pursuant to chapter 17A. An agency or commission for which a staff is provided shall have control over such staff. A city required to maintain a local civil rights agency or commission shall structure and adequately fund the agency or commission in order to effect cooperative undertakings with the Iowa civil rights commission and to aid in effectuating the purposes of this chapter.

3. An agency or commission of local government and the Iowa civil rights commission shall cooperate in the sharing of data and research, and coordinating investigations and conciliations in order to expedite claims of unlawful discrimination and eliminate needless duplication. The Iowa civil rights commission may enter into cooperative agreements with any local agency or commission to effectuate the purposes of this chapter. Such agreements may include technical and clerical assistance and reimbursement of expenses incurred by the local agency or commission in the performance of the agency's or commission's duties if funds for this purpose are appropriated by the general assembly.

4. The Iowa civil rights commission may designate an unfunded local agency or commission as a referral agency. A local agency or commission shall not be designated a referral agency unless the ordinance creating it provides the same rights and remedies as are provided in this chapter. The Iowa civil rights commission shall establish by rules the procedures for designating a referral agency and the qualifications to be met by a referral agency.

5. The Iowa civil rights commission may adopt rules establishing the procedures for referral of complaints. A referral agency may refuse to accept a case referred to it by the Iowa civil rights commission if the referral agency is unable to effect proper administration of the complaint. It shall be the burden of the referral agency to demonstrate that it is unable to properly administer that complaint.

6. A complainant who files a complaint with a referral agency having jurisdiction shall be prohibited from filing a complaint with the Iowa civil rights commission alleging violations based upon the same acts or practices cited in the original complaint; and a complainant who files a complaint with the commission shall be prohibited from filing a complaint with the referral agency alleging violations based upon the same acts or practices cited in the original complaint. However, the Iowa civil rights commission in its discretion may refer a complaint filed with the commission to a referral agency having jurisdiction over the parties for investigation and resolution; and a referral agency in its discretion may refer a complaint filed with that agency to the commission for investigation and resolution.

7. A final decision by a referral agency shall be subject to judicial review as provided in section 216.17 in the same manner and to the same extent as a final decision of the Iowa civil rights commission.

8. The referral of a complaint by the Iowa civil rights commission to a referral agency or by a referral agency to the Iowa civil rights commission shall not affect the right of a complainant to commence an action in the district court under section 216.16.

[C66, 71, §105A.12; C73, §601A.12; C75, 77, §601A.17; C79, 81, §601A.19]

90 Acts, ch 1166, §1

C93, §216.19

2009 Acts, ch 133, §214

Section amended

216.20 Effect on other law.

1. This chapter does not affect:

a. A reasonable local or state restriction on the maximum number of occupants permitted to occupy a dwelling.

b. Tenancy of an individual that would constitute a direct threat to the health or safety of other individuals or tenancy that would result in substantial physical damage to the property of others.

2. This chapter does not affect a requirement of nondiscrimination in other state or federal law.

91 Acts, ch 184, §12

CS91, §601A.20

92 Acts, ch 1129, §18

C93, §216.20

216.21 Documents to attorney or party.

If a party is represented by an attorney during the proceedings of the commission, with permission of the attorney for the party or of the party, the commission shall provide copies of all relevant documents including an order or decision to either the attorney for the party or the party, but not to both.

2009 Acts, ch 178, §27

NEW section

[Prior to 9/24/86, Employment Security[370] Ch 10]

[Prior to 5/21/97, see Job Service[345] Ch 10]

877--28.1(96,84A) Forms. Forms listed below in numeric sequence are the forms used by the division of workforce development center administration. The listing includes: claims and benefit forms, job orders and related areas, order filling and related areas, alien employment certification, complaints, work force investment program, mentoring program, Iowa conservation corps, state labor management program, work opportunity tax credit, job training partnership program, and Trade Act of 1974 forms.

Generally, the employer does not have to request the forms used in the claims and benefit procedures since the division sends them automatically after a claim for job insurance has been filed by a former employee or one who is on a laid-off status. The claimant will receive many of these forms in the local workforce development center during or following the filing of an initial claim or within the nonmonetary determination or continued claim process. Similarly the employer does not have to request the forms used in the contribution (tax) and charges procedure or in the employer records and reports procedures since the division sends them automatically. However, if the forms are not received, the employer must obtain them from Department of Workforce Development, 1000 East Grand Avenue, Des Moines, Iowa 50319.

The job order, job application and related forms are forms used by applicants, employer, or division employees when an individual is seeking work through a workforce development center or when an employer uses the workforce development centers to fill job vacancies to obtain job applicants. The forms are either supplied or obtainable from the division at 150 Des Moines Street, Des Moines, Iowa 50309.

This rule is intended to implement Federal Regulation 7 CFR 273.7(d) and Iowa Code chapters 96 and 84A.

[Filed 11/13/75, Notice 10/6/75--published 12/1/75, effective 1/5/76]

[Filed 4/29/76, Notice 3/22/76--published 5/17/76, effective 6/21/76]

[Filed 12/9/76, Notice 11/3/76--published 12/29/76, effective 2/2/77]

[Filed 9/30/77, Notice 8/24/77--published 10/19/77, effective 11/23/77]

[Filed 5/24/78, Notice 4/5/78--published 6/14/78, effective 7/19/78]

[Filed 8/17/78, Notice 6/28/78--published 9/6/78, effective 10/11/78]

[Filed 12/22/78, Notice 11/15/78--published 1/10/79, effective 2/14/79]

[Filed 7/31/80, Notice 5/28/80--published 8/20/80, effective 9/24/80]

[Filed 11/19/80, Notice 10/1/80--published 12/10/80, effective 1/14/81]

[Filed 4/10/81, Notice 2/18/81--published 4/29/81, effective 6/4/81]

[Filed 7/30/82, Notice 6/9/82--published 8/18/82, effective 9/22/82]

[Filed 9/24/82, Notice 8/18/82--published 10/13/82, effective 11/17/82]

[Filed emergency 3/31/83--published 4/27/83, effective 4/1/83]

[Filed emergency 8/3/83--published 8/31/83, effective 8/3/83]

[Filed 5/2/84, Notice 2/29/84--published 5/23/84, effective 6/27/84]

[Filed 4/27/84, Notice 2/29/84--published 5/23/84, effective 6/28/84]

[Filed 8/30/85, Notice 7/3/85--published 9/25/85, effective 10/30/85]

[Filed emergency 9/5/86--published 9/24/86, effective 9/5/86]

[Filed emergency 10/30/87--published 11/18/87, effective 12/1/87]

[Filed 1/8/88, Notice 11/18/87--published 1/27/88, effective 3/2/88]

[Filed 11/14/88, Notices 8/24/88, 10/19/88--published 11/30/88, effective 1/4/89]

[Filed 4/28/97, Notice 2/26/97--published 5/21/97, effective 6/25/97]

Editor's Note: In accordance with Iowa Code section 17A.6(3) the forms and informational materials are being omitted from the Iowa Administrative Code and are available upon request from the division.

[Prior to 6/10/92, see 345--6.5(96) and 6.8(96)]

[Prior to 5/21/97, see Job Service[345] Ch 9]

877--26.1(17A,96) Petition for rule making. Any person may file a petition for rule making with Department of Workforce Development, 1000 East Grand Avenue, Des Moines, Iowa 50319. A petition is deemed filed when it is received by that office. The agency must provide the petitioner with a file-stamped copy of the petition if the petitioner provides the agency an extra copy for this purpose. The petition must be typewritten, or legibly handwritten in ink, and must substantially conform to the following form:

DEPARTMENT OF WORKFORCE DEVELOPMENT

Division OF WORKFORCE DEVELOPMENT CENTER ADMINISTRATION

Petition by (Name of Petitioner) for the

(adoption, amendment, or repeal) of rules

relating to (state the subject matter).

}

PETITION FOR RULE MAKING

The petition must provide the following information:

1. A statement to the specific rule-making action sought by the petitioner, including the text or a summary of the contents of the proposed rule or amendment to a rule, and, if it is a petition to amend or repeal a rule, a citation and the relevant language to the particular portion or portions of the rule proposed to be amended or repealed.

2. A citation to any law deemed relevant to the agency's authority to take the action urged or to the desirability of that action.

3. A brief summary of petitioner's arguments in support of the action urged in the petition.

4. A brief summary of any data supporting the action urged in the petition.

5. The names and addresses of other persons, or a description of any class of persons, known by petitioner to be affected by, or interested in, the proposed action which is the subject of the petition.

6. Any request by petitioner for a meeting provided for by subrule 26.1(5).

26.1(1) The petition must be dated and signed by the petitioner or the petitioner's representative. It must also include the name, mailing address, and telephone number of the petitioner and petitioner's representative, and a statement indicating the person to whom communications concerning the petition should be directed.

26.1(2) The agency may deny a petition because it does not substantially conform to the required form.

26.1(3) Briefs. The petitioner may attach a brief to the petition in support of the action urged in the petition. The agency may request a brief from the petitioner or from any other person concerning the substance of the petition.

26.1(4) Inquiries. Inquiries concerning the status of a petition for rule making may be made to the Director, Department of Workforce Development, 1000 East Grand Avenue, Des Moines, Iowa 50319.

26.1(5) Agency consideration.

a. Within 14 days after the filing of a petition, the agency must submit a copy of the petition and any accompanying brief to the administrative rules coordinator and to the administrative rules review committee. Upon request by petitioner in the petition, the agency must schedule a brief and informal meeting between the petitioner and the agency, a member of the agency, or a member of the staff of the agency to discuss the petition. The agency may request the petitioner to submit additional information or argument concerning the petition. The agency may also solicit comments from any person on the substance of the petition. Also, comments on the substance of the petition may be submitted to the agency by any person.

b. Within 60 days after the filing of the petition, or within any longer period agreed to by the petitioner, the agency must, in writing, deny the petition and notify petitioner of its action and the specific grounds for the denial, or grant the petition and notify petitioner that it has instituted rule-making proceedings on the subject of the petition. Petitioner shall be deemed notified of the denial or grant of the petition on the date when the agency mails or delivers the required notification to petitioner.

c. Denial of petition because it does not substantially conform to the required form does not preclude the filing of a new petition on the same subject that seeks to eliminate the grounds for the agency's rejection of the petition.

This rule is intended to implement Iowa Code section 17A.7 and chapter 96.

877--26.2(17A,96) Petition for declaratory order. Any person may file a petition with the department of workforce development for a declaratory order as to the applicability to specified circumstances of a statute, rule, or order within the primary jurisdiction of the department of workforce development at its offices at 1000 East Grand Avenue, Des Moines, Iowa 50319. A petition is deemed filed when it is received by that office. The department of workforce development shall provide the petitioner with a file-stamped copy of the petition if the petitioner provides the agency an extra copy for this purpose. The petition must be typewritten or legibly handwritten in ink and must substantially conform to the following form:

DEPARTMENT OF WORKFORCE DEVELOPMENT

Division OF WORKFORCE DEVELOPMENT CENTER ADMINISTRATION

Petition by (Name of Petitioner)

for a Declaratory Order on

(Cite provisions of law involved).

}

PETITION FOR DECLARATORY ORDER

The petition must provide the following information:

1. A clear and concise statement of all relevant facts on which the order is requested.

2. A citation and the relevant language of the specific statutes, rules, policies, decisions, or orders, whose applicability is questioned, and any other relevant law.

3. The questions petitioner wants answered, stated clearly and concisely.

4. The answers to the questions desired by the petitioner and a summary of the reasons urged by the petitioner in support of those answers.

5. The reasons for requesting the declaratory order and disclosure of the petitioner's interest in the outcome.

6. A statement indicating whether the petitioner is currently a party to another proceeding involving the questions at issue and whether, to the petitioner's knowledge, those questions have been decided by, are pending determination by, or are under investigation by, any governmental entity.

7. The names and addresses of other persons, or a description of any class of persons, known by petitioner to be affected by, or interested in, the questions presented in the petition.

8. Any request by petitioner for a meeting provided for by subrule 26.2(6).

The petition must be dated and signed by the petitioner or the petitioner's representative. It must also include the name, mailing address, and telephone number of the petitioner and the petitioner's representative and a statement indicating the person to whom communications concerning the petition should be directed.

26.2(1) Notice of petition. Within 10 days after receipt of a petition for a declaratory order, the department of workforce development shall give notice of the petition to all persons not served by the petitioner pursuant to subrule 26.2(5) to whom notice is required by any provision of law. The department of workforce development may also give notice to any other persons.

26.2(2) Interventions. Persons who qualify under applicable provision of law as an intervenor and who file a petition for intervention within 20 days of the filing of a petition for declaratory order shall be allowed to intervene in a proceeding for a declaratory order. Any person who files a petition for intervention at any time prior to the issuance of an order may be allowed to intervene in a proceeding for a declaratory order at the discretion of the department of workforce development. A petition for intervention shall be filed at 1000 East Grand Avenue, Des Moines, Iowa 50319. Such petition is deemed filed when it is received by that office. The department of workforce development will provide the petitioner with a file-stamped copy of the petition for intervention if the petitioner provides an extra copy for this purpose. A petition for intervention must be typewritten or legibly handwritten in ink and must substantially conform to the following form:

DEPARTMENT OF WORKFORCE DEVELOPMENT

Division OF WORKFORCE DEVELOPMENT CENTER ADMINISTRATION

Petition by (Name of Original Petitioner)

for a Declaratory Order on (Cite provisions

of law cited in the original petition).

PETITION FOR INTERVENTION

The petition for intervention must provide the following information:

1. Facts supporting the intervenor's standing and qualification for intervention.

2. The answers urged by the intervenor to the question or questions presented and a summary of the reasons urged in support of those answers.

3. Reasons for requesting intervention and disclosure of the intervenor's interest in the outcome.

4. A statement indicating whether the intervenor is currently a party to any proceeding involving the questions at issue and whether, to the intervenor's knowledge, those questions have been decided by, are pending determination by, or are under investigation by, any governmental entity.

5. The names and addresses of any additional persons, or a description of any additional class of persons, known by the intervenor to be affected by, or interested in, any governmental entity.

6. Whether the intervenor consents to be bound by the determination of the matters presented in the declaratory order proceeding.

The petition must be dated and signed by the intervenor or the intervenor's representative. It must also include the name, mailing address, and telephone number of the intervenor and intervenor's representative, and a statement indicating the person to whom communications should be directed.

26.2(3) Briefs. The petitioner or intervenor may file a brief in support of the position urged. The department of workforce development may request a brief from the petitioner, any intervenor or any other person concerning the questions raised.

26.2(4) Inquiries. Inquiries concerning the status of a declaratory order proceeding may be made to the Director, Department of Workforce Development, 1000 East Grand Avenue, Des Moines, Iowa 50319.

26.2(5) Service and filing of petitions and other papers.

a. Except where otherwise provided by law, every petition for declaratory order, petition for intervention, brief, or other paper filed in a proceeding for a declaratory order shall be served upon each of the parties of record to the proceeding, and on all other persons identified in the petition for declaratory order or petition for intervention as affected by or interested in the questions presented, simultaneously with their filing. The party filing a document is responsible for service on all parties and other affected or interested parties.

b. All petitions for declaratory orders, petitions for intervention, briefs, or other papers in a proceeding for a declaratory order shall be filed with the Director, Department of Workforce Development, 1000 East Grand Avenue, Des Moines, Iowa 50319. All petitions, briefs, or other papers that are required to be served upon a party shall be filed simultaneously with the department of workforce development.

c. Service upon a party represented by an attorney shall be made upon the attorney and a copy will be sent to the petitioner. Service is made by delivery or by mailing a copy to the person's last-known address. Service by mail is complete upon mailing, except where otherwise specifically provided by statute, rule, or order.

d. After the notice of hearing, all pleadings, motions, documents or other papers that are required to be served upon a party shall be filed simultaneously with the department of workforce development.

e. Except where otherwise provided by law, a document is deemed filed at the time it is delivered to the department of workforce development, delivered to an established courier service for immediate delivery to that office, or mailed by first-class mail or state interoffice mail to that office, so long as there is proof of mailing.

f. Proof of mailing includes either: a legible United States Postal Service postmark on the envelope, a certificate of service, a notarized affidavit, or a certification in substantially the following form:

I certify under penalty of perjury and pursuant to the laws of Iowa that, on (date of mailing), I mailed copies of (describe document) addressed to the Department of Workforce Development, 1000 East Grand Avenue, Des Moines, Iowa 50319, and to the names and addresses of the parties listed below by depositing the same in (a United States post office mailbox with correct postage properly affixed or state interoffice mail).

(Date)

(Signature)

26.2(6) Consideration. Upon request by petitioner, the department of workforce development must schedule a brief and informal meeting between the original petitioner, all intervenors, and the department, a member of the department, or a member of the staff of the department, to discuss the questions raised. The department may solicit comments from any person on the questions raised. Also, comments on the questions raised may be submitted to the department by any person.

26.2(7) Action on petition. Within the time allowed by 1998 Iowa Acts, chapter 1202, section 13(5), after receipt of a petition for a declaratory order, the director or designee shall take action on the petition as required by 1998 Iowa Acts, chapter 1202, section 13(5). The date of issuance of an order or of a refusal to issue an order is the date of mailing of the decision or date of delivery if service by another means unless another date is specified in the order. The administrative rules committee of the workforce development board will be advised of the disposition of all petitions.

26.2(8) Refusal to issue order. The department of workforce development shall not issue a declaratory order where prohibited by 1998 Iowa Acts, chapter 1202, section 13(1), and may refuse to issue a declaratory order on some or all of the questions raised for the following reasons:

a. The petition does not substantially comply with the required form.

b. The petition does not contain facts sufficient to demonstrate that the petitioner will be aggrieved or adversely affected by the failure of the department of workforce development to issue an order.

c. The department of workforce development does not have jurisdiction over the questions presented in the petition.

d. The questions presented by the petition are also presented in a current rule making, contested case, or other agency or judicial proceeding, that may definitively resolve them.

e. The questions presented by the petition would more properly be resolved in a different type of proceeding or by another body with jurisdiction over the matter.

f. The facts or questions presented in the petition are unclear, overbroad, insufficient, or otherwise inappropriate as a basis upon which to issue an order.

g. There is no need to issue an order because the questions raised in the petition have been settled due to a change in circumstances.

h. The petition is not based upon facts calculated to aid in the planning of future conduct but is, instead, based solely upon prior conduct in an effort to establish the effect of that conduct or to challenge an agency decision already made.

i. The petition requests a declaratory order that would necessarily determine the legal rights, duties, or responsibilities of other persons who have not joined in the petition, intervened separately, or filed a similar petition and whose position on the questions presented may fairly be presumed to be adverse to that of petitioner.

j. The petitioner requests the department of workforce development to determine whether a statute is unconstitutional on its face.

A refusal to issue a declaratory order must indicate the specific grounds for the refusal and constitutes final agency action on the petition.

Refusal to issue a declaratory order pursuant to this provision does not preclude the filing of a new petition that seeks to eliminate the grounds for the refusal to issue an order.

26.2(9) Contents of declaratory order--effective date. In addition to the order itself, a declaratory order must contain the date of its issuance, the name of petitioner and all intervenors, specific statutes, rules, policies, decisions, or orders involved, the particular facts upon which it is based, and the reasons for its conclusion.

A declaratory order is effective on the date of issuance.

26.2(10) Copies of orders. A copy of all orders issued in response to a petition for a declaratory order shall be mailed promptly to the original petitioner and all intervenors.

26.2(11) Effect of a declaratory order. A declaratory order has the same status and binding effect as a final order issued in a contested case proceeding. It is binding on the department of workforce development and the petitioner, and any intervenors who consent to be bound and is applicable only in circumstances where the relevant facts and the law involved are indistinguishable from those on which the order was based. As to all other persons, a declaratory order serves only as precedent and is not binding on the department of workforce development. The issuance of a declaratory order constitutes final agency action on the petition. The administrative rules committee of the workforce development board will be advised of the disposition of all declaratory orders.

This rule is intended to implement Iowa Code chapter 17A as amended by 1998 Iowa Acts, chapter 1202, and Iowa Code chapter 96.

[Filed 10/28/75, Notice 9/22/75--published 11/17/75, effective 12/23/75]

[Filed 4/29/76, Notice 3/22/76--published 5/17/76, effective 6/21/76]

[Filed 12/9/76, Notice 11/3/76--published 12/29/76, effective 2/2/77]

[Filed 9/30/77, Notice 8/24/77--published 10/19/77, effective 11/23/77]

[Filed emergency 9/5/86--published 9/24/86, effective 9/5/86]

[Filed emergency 10/1/86--published 10/22/86, effective 10/1/86]

[Filed 12/8/86, Notice 10/22/86--published 12/31/86, effective 2/4/87]

[Filed 5/22/92, Notice 4/15/92--published 6/10/92, effective 7/15/92]

[Filed 4/28/97, Notice 2/26/97--published 5/21/97, effective 6/25/97]

[Filed 4/29/99, Notice 3/10/99--published 5/19/99, effective 6/23/99]

The division of workforce development center administration of the department of workforce development hereby adopts the rules of the Governor's Task Force on Uniform Rules of Agency Procedure relating to public records and fair information practices which are printed in the first volume of the Iowa Administrative Code with the following exceptions and amendments:

877-25.1(22,96) Definitions.

"Agency." In lieu of the words "(official or body issuing these rules)", insert "the division of workforce development center administration of the department of workforce development".

"Person" means an individual, corporation, governmental entity, estate, trust, partnership, association, or any other legal entity.

"Personally identifiable information." In lieu of the words "an individual in a record which identifies the individual and which is contained in a record system", insert "a person in a record which identifies the person and which is contained in a record system".

"Record system." In lieu of the words "an individual, number, symbol, or other unique retriever assigned to an individual", insert "a person, number, symbol or other unique retriever assigned to the person".

877-25.3(22,96) Request for access to records.

25.3(1) Location of record. In lieu of the words "(insert agency head)", insert "division administrator". Also, in lieu of the words "(insert agency name and address)", insert "Division of Workforce Development Center Administration, Department of Workforce Development, 150 Des Moines Street, Des Moines, Iowa 50309".

25.3(2) Office hours. In lieu of the words "(insert customary office hours and, if agency does not have customary office hours of at least thirty hours per week, insert hours specified in Iowa Code section 22.4)", insert "customary and usual hours, which are 8 a.m. to 4:30 p.m. daily, excluding Saturdays, Sundays, and legal holidays".

25.3(4) Response to requests. In lieu of the words "X.4", insert "25.4(22,96)".

25.3(7) Fees.

c. Supervisory fee. In lieu of the words "(specify time period)", insert "one-half hour".

877-25.4(22,96) Access to confidential records. In lieu of the words "rule X.3", insert "rule 25.3(22,96)".

877-25.6(22,96) Procedure by which additions, dissents, or objections may be entered into certain records. In lieu of the words "(designate office)", insert "the Division of Workforce Development Center Administration, Department of Workforce Development, 150 Des Moines Street, Des Moines, Iowa 50309."

877-25.7(22,96) Consent to disclosure by the subject of a confidential record. Remove the brackets around "(and, where applicable, the time period during which the record may be disclosed)". Also, in lieu of the words "(Additional requirements may be necessary for special classes of records)", insert "If the agency is required to obtain from a third party a confidential record about the subject to establish eligibility under a program administered by the agency, the agency has the authority under Iowa Code subsection 96.11(8) to obtain a confidential record deemed necessary for the administration of Iowa Code chapter 96."

877-25.8(22,96) Notice to suppliers of information. Insert immediately following "or by other appropriate means", "including: Form 70-5007, Handbook for Private Employers, to employing units; Form 70-6200, Facts for Workers, to individuals claiming unemployment insurance benefits; Form 70-8005, Release of Information Poster, to individuals applying for employment services; and Form 60-0243, Notification of Information Release; or Form 65-5334, Release of Information, when manual or automated, respectively, prior notice to a person of the release of information to an authorized entity is performed".

877-25.9(22,96) Disclosure without the consent of the subject.

25.9(1) An open record is routinely disclosed without the consent of the subject.

25.9(2) To the extent allowed by law, disclosure of a confidential record may occur without the consent of the subject. Following are instances where disclosure, if lawful, will generally occur without consent of the subject:

a. For a routine use as defined in rule 25.10(22,96); however, Iowa Code subsection 96.11(7) requires notification of the subject prior to some routine uses.

b. To another governmental agency or to an instrumentality of any governmental jurisdiction within or under the control of the United States for a civil or criminal law enforcement activity if the activity is authorized by law, and if an authorized representative of such governmental agency or instrumentality has submitted a written request to the agency specifying the record desired and the law enforcement activity for which the record is sought.

c. To an agency of this or another state or of the federal government which administers or operates a program of public assistance or child support enforcement under either federal law or the law of this or another state, or which is charged with a duty or responsibility under any such program, and if that agency is required by law to impose safeguards for the confidentiality of information at least as effective as required under Iowa Code subsection 96.11(7). The requesting agency shall be provided, with respect to any named individual specified, any of the following:

(1) Whether the individual is receiving, has received, or has made application for unemployment compensation under Iowa Code chapter 96.

(2) The period, if any, for which unemployment compensation was payable and the weekly rate of compensation paid.

(3) The individual's most recent address.

(4) Whether the individual has refused an offer of employment, and, if so, the date of the refusal and a description of the employment refused, including duties, conditions of employment, and the rate of pay.

(5) Wage information.

d. To the legislative services agency under Iowa Code section 2A.3.

e. Disclosure in the course of employee disciplinary proceedings.

f. In response to a court order or subpoena.

g. To the citizens' aide under Iowa Code section 601G.9(3).

877-25.10(22,96) Routine use.

25.10(1) Defined. "Routine use" means the disclosure of a record without the consent of the subject, for a purpose which is compatible with the purpose for which the record was collected. It includes disclosures required to be made by statute other than the public records law, Iowa Code chapter 22.

25.10(2) To the extent allowed by law, the following uses are considered routine uses of all agency records:

a. Disclosure to those officers, employees, and agents of the agency who have a need for the record in the performance of their duties. The custodian of the record may upon request of any officer, employee, and agent, or on the custodian's own initiative, determine what constitutes legitimate need to use a confidential record.

b. Disclosure of information indicating an apparent violation of the law to appropriate law enforcement authorities for investigation and possible criminal prosecution, civil court action, or regulatory order, including disclosure to the county attorney for the county attorney's use in the performance of duties under Iowa Code subsection 331.756(5).

c. Disclosure of information to staff of federal and state entities for audit purposes or for purposes of determining whether the agency is operating a program lawfully.

d. Direct disclosure of information with an attempt to provide notification to the subject and for a purpose consistent with Iowa Code chapter 96 to any of the following:

(1) An agency of this or any other state or a federal agency responsible for the administration of an unemployment compensation law or the maintenance of a system of public employment offices.

(2) The Bureau of Internal Revenue of the United States Department of the Treasury.

(3) The Iowa department of revenue.

(4) The Social Security Administration of the United States Department of Health and Human Services.

(5) An agency of this or any other state or a federal agency responsible for the administration of public works or the administration of public assistance to unemployed individuals.

(6) Colleges, universities and public agencies of this state for use in connection with research of a public nature, provided the agency does not reveal the identity of the subject.

(7) An employee of the department of workforce development, a member of the general assembly, or a member of the United States Congress in connection with the employee's or member's official duties.

(8) A political subdivision, governmental entity, or nonprofit organization having an interest in the administration of job training programs established pursuant to the federal Job Training Partnership Act.

(9) The United States Department of Housing and Urban Development and representatives of a public housing agency. For the purposes of this subparagraph, public housing agency means any agency described in Section 3(b)(6) of the United States Housing Act of 1937, as amended through January 1, 1989.

877-25.11(22,96) Release to a subject.

25.11(1) The subject of a confidential record may file a written request to review a confidential record about that person as provided in rule 25.6(22,96). However, the agency need not release the following records to the subject:

a. The identity of a person providing information to the agency need not be disclosed directly or indirectly to the subject when the information is authorized to be held confidential pursuant to Iowa Code subsection 22.7(18) or other provision of law.

b. A record need not be disclosed to the subject when it is the work product of an attorney or is otherwise privileged.

c. A peace officer's investigative report may be withheld from the subject, except as required by Iowa Code subsection 22.7(5).

d. As otherwise authorized by law.

25.11(2) Where a record has multiple subjects with interest in the confidentiality of the record, the agency may take reasonable steps to protect confidential information relating to another subject.

877-25.12(22,96) Availability of records.

25.12(1) General. Agency records are open for public inspection and copying unless otherwise provided by law or rule.

25.12(2) Confidential records. The following records may be withheld from public inspection. Records are listed by category, according to the legal basis for withholding them from public inspection.

a. Unemployment insurance tax records made available to the agency and withheld from public inspection pursuant to Iowa Code subsection 96.11(7).

b. Unemployment insurance benefit records, including an initial determination made by the agency's representative under Iowa Code subsection 96.6(2) as to the benefit rights of an individual, made available to the agency and withheld from public inspection pursuant to Iowa Code subsection 96.11(7).

c. Employment records made available to the agency and withheld from public inspection pursuant to Iowa Code subsection 96.11(7).

d. Sealed bids received prior to the time set for public opening of bids pursuant to Iowa Code section 72.3.

e. Tax records made available to the agency pursuant to Iowa Code sections 422.20 and 422.72.

f. Records which are exempt from disclosure under Iowa Code section 22.7.

g. Minutes of closed meetings of a governmental body pursuant to Iowa Code subsection 21.5(4).

h. Identifying details in final orders, decisions and opinions to the extent required to prevent a clearly unwarranted invasion of personal privacy or trade secrets under Iowa Code section 17A.3(1)"d."

i. Those portions of agency staff manuals, instructions or other statements issued which set forth criteria or guidelines to be used by agency staff in auditing, in making inspections, in settling commercial disputes or negotiating commercial arrangements, or in the selection or handling of cases, such as operational tactics or allowable tolerances or criteria for the defense, prosecution or settlement of cases, may be withheld from public inspection when disclosure of these statements would, pursuant to Iowa Code sections 17A.2 and 17A.3:

(1) Enable law violators to avoid detection;

(2) Facilitate disregard of requirements imposed by law; or

(3) Give a clearly improper advantage to persons who are in an adverse position to the agency.

j. Records which constitute attorney work product, attorney-client communications, or which are otherwise privileged. Attorney work product is confidential under Iowa Code subsection 22.7(4), section 622.10, and section 622.11, Iowa R.C.P. 122(c), Fed. R. Civ. P. 26(b)(3), and case law. Attorney-client communications are confidential under Iowa Code sections 622.10 and 622.11, the rules of evidence, the Code of Professional Responsibility, and case law.

25.12(3) Authority to release confidential records. The agency may have discretion to disclose some confidential records which are exempt from disclosure under Iowa Code section 22.7 or other law. Any person may request permission to inspect records withheld from inspection under a statute which authorizes limited or discretionary disclosure as provided in rule 25.4(22,96). If the agency initially determines that it will release such records, the agency may where appropriate notify interested parties and withhold the records from inspection as provided in subrule 25.4(3).

877-25.13(22,96) Personally identifiable information. This rule describes the nature and extent of personally identifiable information which is collected, maintained, and retrieved by the agency by personal identifier in record systems as defined in rule 25.1(22,96). For each record system, this rule describes the legal authority for the collection of that information, the means of storage of that information and indicates whether a data processing system matches, collates, or permits the comparison of personally identifiable information in one record system with personally identifiable information in another record system.

25.13(1) The record systems maintained by the division are:

a. Employment records. These records are collected from each individual applying for employment and each employing unit offering employment pursuant to Iowa Code subsection 96.11(7) for the purpose of providing employment services to the individual and the employing unit. For a more complete description of the content of these records, see 877--Chapter 8. These records are stored in an automated data processing system and may be retrieved by a personal identifier.

b. Other groups of records routinely available for public inspection. This paragraph describes groups of records maintained by the agency other than in a record system as defined in rule 25.1(22,96):

(1) Published materials. The agency uses many legal and technical publications in its work. The public may inspect these publications upon request. Some of these materials may be protected by copyright law.

(2) Policy manuals. Manuals containing the policies and procedures for programs administered by the agency are available in the administrative office of the division. Subscriptions to all or part of the manuals are available at the cost of production and handling. Requests for subscription information should be addressed to the Custodian of the Record, Division of Workforce Development Center Administration, Department of Workforce Development, 150 Des Moines Street, Des Moines, Iowa 50309. Policy manuals do not contain information about persons.

(3) All other records that are not exempted from disclosure by law.

25.13(2) All data processing systems used by the agency permit the comparison of personally identifiable information in one record system with personally identifiable information in another record system.

877-25.14(22,96) Applicability. This chapter does not:

1. Require the agency to index or retrieve records which contain information about persons by that person's name or other personal identifier.

2. Make available to the general public records which would otherwise not be available under the public records law, Iowa Code chapter 22 and Iowa Code chapter 96.

3. Govern the maintenance or disclosure of, notification of or access to, records in the possession of the agency which are governed by the regulations of another agency.

4. Apply to grantees, including local governments or subdivisions thereof, administering state-funded programs, unless otherwise provided by law or agreement.

5. Make available records compiled by the agency in reasonable anticipation of court litigation or formal administrative proceedings. The availability of such records to the general public or to any subject individual or party to such litigation or proceedings shall be governed by applicable legal and constitutional principles, statutes, rules of discovery, evidentiary privileges, and applicable regulations of the agency.

These rules are intended to implement Iowa Code section 22.11 and Iowa Code chapter 96.

[Filed 4/28/97, Notice 2/26/97--published 5/21/97, effective 6/25/97]

[Prior to 5/21/97, see 345--1.3(96)]

877--24.1(96) Forms availability. Voter registration forms are available at all workforce development centers.

24.1(1) The division of workforce development center administration will permit the use of its offices to register voters subject to the following conditions.

24.1(2) Conditions.

a. Main waiting rooms. Registration shall be conducted only in main waiting room areas.

b. Hours. Registration shall be conducted only during regular office hours.

c. Number of persons. Only two persons may conduct voter registration activity at any given time.

d. Persons not to be contacted. Persons seeking assistance from the division shall not be contacted while in the process of being assisted by a division employee.

e. Furniture, signs, posters. No furniture, signs or posters shall be placed in division offices without permission of the office manager.

f. Identification tags. Persons registering voters may wear identification tags.

g. Normal operation of office. Persons registering voters shall not interfere with the normal operation of the office and shall conduct themselves in an orderly manner.

h. Entering and exiting office. Entering and exiting of individuals using the office shall not be impeded in any way

i. Violations. Office managers shall notify any person or persons violating any conditions to cease the violation.

This rule is intended to implement Iowa Code sections 96.10 and 96.11 and Federal Rule of Civil Procedure 65(b).

[Filed 4/28/97, Notice 2/26/97--published 5/21/97, effective 6/25/97]