JAMES A. MONTZ, Complainant, and IOWA CIVIL
CIVIL SERVICE COMMISSION and CITY OF ESTHERVILLE, IOWA, Respondents.
CONCLUSIONS OF LAW
1. James A. Montz' complaint was timely filed within one hundred eighty
days of the alleged discriminatory practice. Iowa Code § 601A.15(11)
(1989). See Finding of Fact No. 1. All the statutory prerequisites for hearing
have been met, i.e. investigation, finding of probable cause, attempted
conciliation, and issuance of Notice of Hearing ' Iowa Code § 601A.15
(1989). See Finding of Fact No. 2.
2. James Montz' complaint is also within the subject matter jurisdiction
of the Commission as the allegations that the Respondents instituted, maintained,
informed him of, and rejected him due to its maximum age hiring limit all
fall within the statutory prohibitions against unfair employment practices.
Iowa Code § 601A.6 (1985). "It shall be a ... discriminatory practice
for any person to refuse to hire, accept . . . for employment . . . or to
otherwise discriminate in employment against any applicant for employment
because of the age of such applicant ... unless based on the nature of the
occupation." Id. at 601A.6(l)(a). "It shall be a . . . discriminatory
practice for any . .. employer ... agents, or members thereof to directly
or indirectly advertise or in any other manner indicate or publicize that
individuals of any particular age . . . are unwelcome, objectionable, not
acceptable, or not solicited for employment or membership unless based on
the nature of the occupation." Id. at 601A.6(l)(c).
3. Official notice may be taken of all facts of which judicial notice
may be taken and of other facts within the specialized knowledge of the
agency. Iowa Code § 17A.14(4) (1991). Judicial notice may be taken
of matters which are "common knowledge or capable of certain verification."
In Re Tresnak, 297 N.W.2d 109, 112 (Iowa 1980).
Federal Court Decisions as Precedent:
4. Federal court decisions applying Federal anti-discrimination laws
are not controlling or governing authority in cases arising under the Iowa
Civil Rights Act. E.g. Franklin Manufacturing Co. v. Iowa Civil Rights Commission,
270 N.W.2d 829,831 (Iowa 1978). Nonetheless, they are often relied on as
persuasive authority in these cases. E.g. Iowa State Fairgrounds Security
v. I Iowa Civil Rights Commission, 322 N.W.2d 293, 296 (Iowa 1982). Although
even decisions of the United States Supreme Court have been rejected as
persuasive authority when their reasoning is inconsistent with the broad
remedial purposes of the Act, Franklin Manufacturing Co. v. Iowa Civil Rights
Commission, 270 N.W.2d at 831; Quaker Oats Company v. Cedar Rapids Human
Rights Commission, 268 N.W.2d 862, 866-67 (Iowa 1978), its opinions are
often entitled to great deference. Quaker Oats Company v. Cedar Rapids Human
Rights Commission at 866. In determining the persuasive value of any Federal
decision, or decision of another state, or other legal authority, it must
be borne in mind that the Act is a "manifestation of a massive national
drive to right wrongs prevailing in our social and economic structures for
more than a century" Iron Workers Local No. 67 v. Hart, 191 N.W.2d
758, 765 (Iowa 1971); and that, when determining its legal effect, the Act
"shall be broadly construed to effectuate its purposes." Iowa
Code § 601 A.1 8. (1991).
Order and Allocation of Proof When Complainant Relies on Direct Evidence of Discrimination:
5. For reasons previously set forth in paragraphs 1 through 4 of the
Ruling on Motion to Dismiss on pages 11 through 13 of this decision, the
order and allocation of proof which applies in this case is that which is
appropriate when the Complainant relies on direct evidence to meet his burden
of persuasion with respect to age discrimination.
6. The proper analytical approach in a case with direct evidence of discrimination
is, first, to note the presence of such evidence; second, to make the finding,
if the evidence is sufficiently probative, that the challenged practice
discriminates against the complainant because of the prohibited basis; third,
to consider any affirmative defenses of the respondent; and, fourth, to
then conclude whether or not illegal discrimination has occurred. See Trans
World Airlines v. Thurston, 469 U.S. 111, 121-22, 124-25, 105 S. Ct. 613,
83 L.Ed. 2d 523, 533, 535 (1985)(Age Discrimination in Employment Act).
Respondents must persuade the finder of fact by the preponderance of the
evidence with respect to any of their affirmative defenses. See Landals
v. Rolfes Co., 454 N.W.2d 891, 893-94 (Iowa 1990); Price-Waterhouse
v. Hopkins, 490 U.S. 228, 109 S. Ct. 1775, 104 L. Ed. 2d 268, 301 (1989)(O'Connor,
J. concurring); Trans World Airlines v. Thurston, 469 U.S. 11 1, 121, 124-25,
105 S. Ct. 613, 83 L.Ed. 2d 523, 533 (1985); Schlei & Grossman, Employment
Discrimination Law: Five Year Cumulative Supplement 473, 476 (2nd ed. 1989).
Direct Evidence of Violation of Iowa Code § 601A.6(l)(c) [indication
by Employer or Its Agents That Individuals of Any Particular Age Are Not
Acceptable for Employment]:
7. There is sufficiently probative direct evidence in the record to establish
that Respondents Vindicated . . . that individuals of any particular age
[i.e. individuals age 33 or over]..... are unwelcome, objectionable, not
acceptable..... for employment." Iowa Code § 601A.6(l)(c). See
Findings of Fact Nos. 20-21, 23-24, 27- 28.
Violation of Iowa Code § 601A.6(l)(a)[Prohibition Against Failing
to Consider or Hire Applicants Based on Age]:
8. There is sufficiently probative direct evidence in the record to establish
that Respondents "refuse[d] to hire, accept ... for employment ...
or ... otherwise discriminated in employment against any applicant for employment
because of the age of such applicant." Id.
at 601A.6(l)(a). See Findings of Facts Nos. 20-21, 23-24, 25-30,
9. The Respondents affirmative defenses shall
be discussed below. It should be noted, however, that Respondents failed
to meet their burden of persuasion with regard to establishing any of their
affirmative defenses to these allegations.
The Same Decision Defense As Either A Complete or Partial Affirmative Defense to A Charge of Discrimination:
10. Respondents have asserted that they have a complete defense to Complainant
Montz' allegations as, irrespective of his age, they would not have hired
him in any event due to his failure to have ILEA certification or an Associate
of Arts degree in law enforcement or the equivalent of such degree. Respondents'
Brief at 7-8. Respondents have not established this defense, however, because
they proved neither that they actually relied on these nonage reasons at
the time Montz was rejected nor that Montz did not have qualifications which
were equivalent to an AA degree in police science or criminal justice. See
Findings of Fact Nos. 31-41, 108129. Even under Respondents' understanding
of the same decision defense, that after-the-fact reasons not relied on
at the time of Montz' rejection can provide a complete defense to liability,
their failure to prove the later fact was fatal to their defense. Respondents'
Brief at 7-8.
11. It should be noted that, under current Federal Title VII law, due
to the amendments enacted under Section 107 of the Civil Rights Act of 1991,
under no circumstances can the employer, by proving that it would have made
the same decision irrespective of the fact that race, color, religion, sex
or national origin was a motivating factor in its decision, effect a complete
defense to liability. Such proof will only limit the remedies available
to declaratory and injunctive relief, attorney's fees and costs. 42 U.S.C.
§§ 20OOe-3(m); 20OOe-5(g)(2)(B). This section was enacted in order
to legislatively overrule the United States Supreme Court's Price-Waterhouse
decision, a Title VII decision, which allows such a complete defense. 4
Employment Discrimination Coordinator 58597 (RIA)(1992)(citing S. Rept.
No. 101-315, 6/ 8/90, pp. 6, 7, 48); Price-Waterhouse v. Hopkins, 490 U.S.
228, 109 S.Ct. 1775, 104 L.Ed. 2d 268, 293). Section 107, therefore, seriously
weakens the persuasive effect of this holding of Price-Waterhouse.
12. Although Price-Waterhouse and the same decision defense have been
discussed as a matter of legal theory in two Iowa Supreme Court opinions
written prior to the Title VII amendments, the discussion was not essential
to the decisions and the theory was never been applied to the facts of the
cases. Landals v. Rolfes Co., 454 N.W.2d 891, 893-94 (Iowa 1990); HY-Vee
Food Stores v. Iowa Civil Rights Commission, 453 N.W.2d 512, 517 (Iowa 1990).
The discussion, in other words, may well be dicta, and not controlling law.
13. It is the Commission's position that the
same decision defense should be limited, as it now is under Title VII, and
was in the 8th and 9th Circuits prior to Price-Waterhouse, see Price-Waterhouse,
104 L.Ed. 2d at 280 n.2 (citing Bibbs v. Block, 778 F.2d 1318, 1320-24 (8th
Cir. 1985), to limiting the damages remedy of the Complainant while not
establishing a complete defense to liability. This would allow attorney's
fees and injunctive relief to end discriminatory practices while ensuring
that damages were not awarded in inappropriate cases. Nonetheless, the legal
issues presented by the Respondents' same decision defense will be treated
as if the statements in Landals and Hy-Vee are not dicta, but controlling
law. Price-Waterhouse will be treated as persuasive authority.
14. In order for an employer to establish, as a complete defense to a
charge of discrimination, that it would have made the same employment decision
even in the absence of age discrimination, it must show that -it actually
relied on, i.e. was influenced or motivated by, the factors which it asserts
as legitimate reasons for the decision at the time the decision was made.
Landals v. Rolfes Co., 454 N.W.2d 891, 89394 (Iowa 1990); Hy-Vee Food Stores
v. Iowa Civil Rights Commission, 453 N.W.2d 512,517 (Iowa 1990); Price-Waterhouse
v. Hopkins, 490 U.S. 228,109 S.Ct. 1775, 104 L. Ed. 2d 268, 289, 293).
15. "Where direct evidence is presented and the employer suggests
other factors influenced the decision, the employer has the burden of proving
by a preponderance of the evidence that it would have made the same decision
even if it had not considered the improper factor." ' Landals v. Rolfes
Co., 454 N.W.2d 891, 893-94 (Iowa 1990)(citing Price Waterhouse v. Hopkins,
490 U.S. 228,109 S.Ct. 1775, 104 L.Ed. 2d 268, 293)(emphasis added). "When
. . . an employer considers both [age] and legitimate factors at the time
of making a decision, that decision was 'because of' [age]." Price-Waterhouse
v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed. 2d 268, 281 (1989) (emphasis
16. This defense is an affirmative defense. Id. at 287. The Respondent
bears the burden of persuading the finder of fact by a preponderance of
the evidence that "it would have made the same decision even if it
had not taken the plaintiff's [age] into account." Id. & 293. A
finding of liability can be avoided by the respondents only if they meet
this burden of proof. Id. at 293.
[T]he employer should be able to present some objective evidence as to its probable decision in the absence of an impermissible motive. Moreover, proving "that the same decision would have been justified ... is not the same as proving that the same decision would have been made." ... An employer may not, in other words prevail in a mixed-motives case by offering a legitimate and sufficient reason for its decision if that reason did not motivate it at the time of the decision. Finally, an employer may not meet its burden in such a case by merely showing that at the time of the decision it was motivated only in part by a legitimate reason.... The employer instead must show that its legitimate reason, standing alone, would have induced it to make the same decision.
Id. at 289. (emphasis added).
17. The above authorities demonstrate that a complete defense to liability
cannot be established based on post-hoc reasons not relied on at the time
the employment decision is made. In Price Waterhouse, "the Court only
allowed a defendant to escape liability if he was motivated by a legitimate
reason at the time of the decision, not if the justification for
the decision was pieced together after the fact." Sabree v. Carpenters
and Joiners, 921 F.2d 396, 54 Fair Empl. Prac. Cas. 1070, 1075 (lst Cir.
1990)(italics in original)(citing Price-Waterhouse, 109 S.Ct. at 1791).
However, remedies may be limited if the employer proves through credible
after-the-fact evidence that the Complainant would inevitably not have been
hired. See Id.. Respondents have failed to prove this. See Findings of Fact
Nos. 108- 129.
18. Although Respondents have failed to prove that complainant Montz
would not have been hired even in the absence of discrimination, it should
still be noted that the cases cited by Respondents do ' not support the
proposition that a complete defense to a charge of discrimination can be
made by demonstrating that lawful reasons not actually relied upon by the
employer at the time of the employment decision would have resulted in a
failure to hire the complainant. Respondents' Brief at 7-8. It is true that
the Eighth Circuit quoted the Eleventh Circuit's Bell decision's statement
that "Once an [illegal] motive is proved to have been a significant
or substantial factor in an employment decision, defendant can rebut only
by proving by a preponderance of the evidence that the same decision
would have been reached even absent the presence of that factor." Perry
v. Kunz, 878 F.2d 1056, 1061, 50 Fair Empl. Prac. Cas. 175, 179 (quoting
Bell v. Birmingham Linen Service, 715 F.2d 1552, 1557 (1 1 th Cir. 1983)
(italics in Perry).
19. Nonetheless, the Bell decision, as noted in Perry, was quoting from
a prior Eleventh Circuit decision. Id. (citing Lee v. Russell County Board
of Education, 684 F.2d 769, 774, 29 Fair Empl. Prac. Cas. ' 1508,1513 (llth
Cir. 1982)). In that case, the Eleventh Circuit held "if there was
no evidence that asserted reasons for (the challenged employment action]
were actually relied on, the reasons are not sufficient
to meet defendant's rebuttal burden." Lee v. Russell, 29 Fair Empl.
Prac. Cas. at 1513 (emphasis added). The Perry decision also cited Price-Waterhouse
and Bibbs v. Block as authority sifter the Bell quotation. Perry
v. Kunz, 50 Fair Empl. Prac. Cas. at 179. As previously noted, Price-Waterhouse
stands for the proposition that "proving 'that the same decision
would have been justified ... is not the same as proving that the
same decision would have been made."' See Conclusion of
Law No. 16. Bibbs and Price-Waterhouse are both consistent with the conclusion
that a complete defense to liability cannot be established by after-the
fact reasons. See Conclusions of Law Nos. 13,16.
Reliance on Legal Advice of Counsel or of the Director of the Iowa Law
Enforcement Academy Is Not a Defense to a Charge of Discrimination Under
the Iowa Civil Rights Act:
20. Respondents argue, on brief, that their
reliance on a number of sources of authority, including advice of the City
Attorney and of the Director of the ILEA, constitutes a defense in this
case which is somehow similar to the defense of a city government's reliance,
in enacting a mandatory retirement program for police officers, on a state
legislature's enactment of a law expressly permitting such policies. Respondents'
Brief at 32-36 (citing EEOC v. City of Janesville, 630 F.2d 1254 (7th Cir.
21. Unlike Janesville, this case involves a mandatory hiring age limit,
and not a mandatory retirement plan. Janesville supports the proposition
that Federal courts may accept and defer to state legislative judgments,
including "the statutory presumption that age is a BFOQ for the class
of protective service workers covered under the Wisconsin Public Employees
Retirement Act," and recognize such judgments as a defense. Janesville
at 1258-59. It does not support the proposition that a city is permitted
to violate the will of the state legislature, as expressed in the Iowa Civil
Rights Act, based on the advice of a city attorney or the head of a state
agency or other government officer. Even reliance on the advice of this
agency, if such had been shown to have been requested and given, would not
constitute a defense to a prosecution by this agency:
Government officers "are but the servants of the law, and, if they depart from its requirements, the government is not bound. There would be a wild license to crime if their acts, in disregard of the law, were to be upheld to protect third parties, as though performed in compliance with it."
Schwartz, Administrative Law § 3.18 (1984)(quoting Moffat v. Limited
States, 112 U.S. 24, 31 (1884)).
Iowa Code Section 400.8 Merely Recognized That Some Civil Service Commissions
Set Age Limits and Required Those Commissions to Prescribe and Publish Any
Such Limits In Their Examination Rules. It Neither Required Nor Empowered
Civil Service Commission to Enact Such Age Limits.
22. Iowa Code section 400.8 consists of three subsections which describe
the examination and appointment process for police and fire fighter positions
which is administered by civil service commissions in Iowa. Iowa Code §
400.8. Subsection 1 states, in relevant part:
400.8 Original entrance examination--appointments.
1. The commission, when necessary under the rules, including minimum
and maximum age
limits, which shall be prescribed and published in advance by the commission and posted in the city hall, shall hold examinations for the purpose of determining the qualifications for positions under civil service. . . . An applicant shall not be discriminated against on basis of height, weight, sex, or race in determining physical or mental ability of the applicant. Reasonable rules relating to strength, agility, and general health of applicants shall be prescribed.
Iowa Code § 400.8 (1991)(as amended effective May 22, 1989)(emphasis
added). Language recognizing that some Civil Service Commissions established
maximum age limits has been in the statute since 1937. Iowa Code Ann. §
400.8 (Historical Note). The anti discrimination language, which does not
include age, and the language concerning the prescription of reasonable
rules relating to strength, agility were added by amendment in 1976. Id.
The Interpretation and Construction of Statutes:
23. In interpreting and construing Iowa Code section 400.8, or any other
statute, the following principles must be remembered. The interpretation
of a statute refers to determining the sense and meaning of the written
text of the statute. BLACK'S LAW DICTIONARY 734 (5th ed. 1979). The construction
of a statute refers to determining its legal effect. BLACK'S LAW DICTIONARY
283,734 (5th ed. 1979). It is the process of determining the sense, real
meaning, or proper explanation of obscure or ambiguous terms or provisions
of a statute by reasoning in the light derived from extraneous connected
circumstances or laws or writings bearing upon the statute or a connected
matter or by seeking and applying the probable aim and purpose of the provision.
BLACK'S LAW DICTIONARY 283 (5th ed. 1979).
24. The polestar of all statutory construction is the search for the
true intention of the legislature. Iowa National Industrial Loan Co. v.
Iowa State, 224 N.W.2d 437, 439 (Iowa 1974). All other rules of construction
are designed to reach this goal and may even be disregarded if necessary
to fulfill the legislature's intent. Id. In ascertaining the intent of the
legislature, where a statute is ambiguous, the following, as well as other
matters, may be considered:
1. The object sought to be attained.
2. The circumstances under which the statute was enacted.
3. The legislative history.
4. The common law or former statutory provisions, including laws upon the same or similar subjects.
5. The consequences of a particular construction.
Iowa Code § 4.6.
25. In construing statutes, strained, impractical or absurd results should
be avoided. Iowa National Industrial Loan Co. v. Iowa State, 224 N.W.2d
at 440. "Ordinarily, the usual and ordinary meaning is to be
given the language used, but the manifest intent of the legislature will
prevail over the literal import of the words used." Id. "Where
language is clear and plain, there is no room for construction."
Id. "It is necessary to look to the object to be accomplished and the
evils and mischiefs sought to be remedied in reaching a reasonable or liberal
construction which will best effect its purpose rather than one which will
defeat it." Id. "All parts of the enactment should be considered
together and undue importance should not be given to any single or isolated
If statutes enacted at the same or different sessions of the legislature are irreconcilable, the statute latest in date of enactment by the general assembly prevails. If provisions of the same Act are irreconcilable, the provision listed last in the Act prevails.
Iowa Code § 4.8 (1991).
If amendments to the same statute are enacted at the same or different sessions of the general assembly, one amendment without reference to the other, the amendments are to be harmonized, if possible, so that effect may be given to each. If the amendments are irreconcilable, the latest in date of enactment by the general assembly prevails.
Iowa Code § 4.11 (1991).
Iowa Code § 400.8 and Maximum Hiring Age Limits:
28. Respondents assert that this statute requires the enactment of maximum
age hiring limits. Respondents' Brief at 52. While there is ambiguity in
the statute, there is no language mandating any such requirement. The act
does not state, for example, that "the commission shall enact maximum
age limits" or that "the commission must enact maximum age limits."
See Iowa Code §§ 4.1(36)(a)(b)(the word "shall" imposes
a duty-the word "must" states a requirement). The statute also
does not empower the commissions to enact such rules. It does not state,
for example, that "the commission may enact maximum age limits."
See Iowa Code § 4.1(36)(c)(the word "may" confers a power).
29. The statute does impose a duty requiring that the rules governing
the examination process be prescribed and published in advance of the examination.
Iowa Code § 400.8. If the commission has minimum and maximum age limits,
they are to be included in the rules and prescribed and published at the
same time as the remaining rules. Id. The statute insures that all such
age limits are included in the examination rules and published. This statute
forecloses any technical argument to the effect that age limits need not
be published as they are not "examination rules."
30. The statute in force prior to the 1937 amendment required the holding
of examinations "under such rules as [the civil service commission]
may prescribe." Iowa Code Ann. § 400.8 (Historical Note)(quoting
Iowa Code § 5696 (1935)). It made no mention of publication and posting
of the rules nor of any age limits. Id. Because there is only a limited
legislative history available in Iowa, it is impossible to know precisely
why the statute was amended, but the legislature probably believed it was
necessary that all potential applicants have access to the examination rules
in advance of the test in order to prevent abuses of the examination process.
Perhaps some applicants had not learned of unpublished age limits until
after the examination process was over. Perhaps there was a suspicion that,
without these safeguards, rules could be manipulated to pre-select favored
candidates, a result contrary to the legislative intent that selection be
based on ability. See Iowa Code § 400.8. Whatever the reason for the
statute's amendment, considered either alone or in the context of chapter
400, it recognizes the existence of age limits, but does not require the
establishment of age limits. Id.
31. The 1976 anti-discrimination amendment prohibits only discrimination
on the bases of "height, weight, sex, or race in determining physical
or mental ability of the applicant." Id. Respondents argue that the
absence of age in this anti-discrimination language indicates continuing
legislative approval of age limits. Respondents Brief at 52- 53.
32. It seems curious that the legislature would ban only these four bases
for discrimination with respect to civil service positions when, in the
previous year, it had already prohibited discrimination in civil service
commission appointments on the basis of "political or religious opinions
or affiliations, race, national origin, sex, or age." Iowa Code Ann.
§ 400.17 (Historical Note)(citing 1975 Iowa Acts ch. 200 §§
4, 5). Why the redundancy in again prohibiting sex and race discrimination?
Why ban discrimination on the bases of height and weight? Why specifically
address determinations of physical and mental ability?
33. The interrelationship between sex and race,
on the one hand, and height and weight standards, and tests of physical
and mental ability, on the other hand, can be summed up in two words, "disparate
impact." By 1976, the disparate impact theory of discrimination, one
of the major theories of discrimination law, had been recognized by both
the United States Supreme Court and the Iowa Supreme Court. Griggs v. Wilson
Sinclair, 211 N.W.2d 133, 140 (Iowa 1973); Griggs v. Duke Power Co.,
401 U.S. 424 (1971). Under the disparate impact theory, practices
which are evenly applied and are, therefore, "fair in form," but
which tend to exclude minorities or women at a disproportionate rate are
illegal unless they can be proven to be justified by business necessity,
i.e. unless they can be shown to be job related. Hy-Vee Food Stores, Inc.
v. Iowa Civil Rights Commission, 453 N.W.2d 512,517, 18 (Iowa 1990).
34. By 1976, police departments, fire departments,
and correctional institutions nationwide were involved in litigation where
plaintiffs utilized the disparate impact theory to attack (1) height and
weight standards on the basis of sex and race discrimination, e.g.
Smith v. City of-East Cleveland, 363 F. Supp. 1131 (D.C. Ohio 1973);
EEOC Decision No. 71-1529 (1971); (2) physical ability tests
on the basis of sex discrimination, e.g. Officers for Justice v. Civil Service
Commission, 11 Empl. Prac. Dec. 10618 (D.C. Ca. 1975), and
(3) written mental ability tests on the basis of race discrimination, e.g.
NAACP v. Civil Service Commission, 6 Empl. Prac. Dec. R 8956 (D.C. Ca. 1973);
NAACP v. Allen, 7 Empl. Prac. Dec. 9 9287 (5th Cir. 1974).
35. It is more likely than not that the legislature enacted this anti-discrimination
clause in order to emphasize the prohibition of this less obvious form of
discrimination, see Teamsters v. United States, 431 U.S. 324, 335-36 n.15
(1977), to end these discriminatory practices, and, not incidentally, to
protect local governments from becoming liable for such practices. This
clause does not signify any legislative tolerance of age discrimination.
36. This construction of Iowa Code section 400.8(l) is consistent with
the rules of construction previously discussed. See Conclusions of Law No.
23-27. The legislature's intention in enacting 400.8 is not to institutionalize
age discrimination but to ensure that selection of fire fighters and police
officers is done fairly and on the basis of true measures of ability. This
construction also harmonizes Iowa Code Section 400.8 and the anti-discrimination
provision of Iowa Code Section 400.17, which provides:
A person shall not be appointed ... to ... a civil service position or in any other way favored or discriminated against in that position because of political or religious opinions or affiliations, race, national origin, sex, or age. However, the maximum age for a police officer or fire fighter covered by this chapter and employed for police duty or the duty of fighting fires is sixty-five years of age.
Iowa Code § 400.17 (1991) (emphasis added).
37. This provision prohibiting age discrimination in civil service appointments
was enacted in 1976, 1976 Iowa Acts Ch. 1189 § 2, thirty-nine years
after the enactment of the language in Iowa Code section 400.8 mentioning
maximum age limits. 1937 Iowa Acts Ch. 56 § 7. The mandatory retirement
age was enacted in 1979.1979 Iowa Acts Ch. 35 § 6.
38. By prohibiting an appointment to a civil service position or any
other discrimination against a person with respect to that position "because
of . . . age," the legislature essentially prohibited the use of age
as a factor in the appointment process. See Price Waterhouse v. Hopkins,
490 U.S. 228,109 S. Ct. 1775, 104 L. Ed. 2d 268, 281-82 (1989)(discussion
of "because of . . . sex"). While there are exceptions, as evidenced
by the mandatory retirement age of 65, if section 400.8 were construed as
either requiring local civil service commissions to set maximum age hiring
limits or empowering them to do so, the prohibition in section 400.17 would
be rendered meaningless. The maximum age limit provision of 400.8 and the
prohibition against age discrimination in the appointment process of 400.17
would be irreconcilable. Iowa Code section 400.17 would prevail as it is
the later enactment and it is listed later in the chapter than section 400.8.
Iowa Code §§ 4.8, 4.1 (1991). See Conclusions of Law Nos. 26-27.
Under the present construction of section 400.8, however, it is not necessary
to reach this issue.
Ruling In the Alternative: If a Portion of Iowa Code Section 400.8 Actually Either Empowered or Required Civil Service Commissions to Establish Maximum Age Hiring Limits for Police Officers, the Anti-Discrimination Language of Iowa Code Section 400.17 Prevails Over It:
39. While, under the construction of section 400.8 set forth above, it
is not necessary to reach this issue, the prevailing status of the anti-discrimination
provision of Iowa Code section 400.17 over the maximum age limit provision
of section 400.8 is adopted as a ruling in the alternative in the event
it should later be determined that section 400.8 either mandates or empowers
civil service commissions to set maximum age hiring limits. The reasoning
for this alternative ruling is set forth in Conclusions of Law Nos. 37-38
Iowa Code Section 411.6(l)(a), Which Establishes A Voluntary Retirement System for Law Enforcement Officers, Provides No Justification For Respondents' Maximum Age Hiring Limit:
40. Iowa Code Chapter 411 establishes and defines
separate retirement systems for municipal police officers and firefighters
appointed under the civil service laws of Iowa. It is undisputed that this
chapter creates a voluntary, not a mandatory, retirement plan allowing police
officers to retire once they have at least 22 years of service and have
reached age 55. See Respondents Brief at 33 ("permits the early retirement").
See Finding of Fact No. 46.
41. Iowa Code Section 411.6(l)(a) provides:
1. Service retirement benefit. Retirement of a member on a service retirement allowance shall be made by each board of trustees as follows:
a. any member in service may retire upon application to board of police or fire trustees as the case may be, setting forth at what time, not less than thirty nor more than ninety days subsequent to the execution and filing of the application, the member desires to be retired. However, the member at the time specified for retirement shall have attained the age of fifty five and shall have served twenty-two years or more, and notwithstanding that, during the period of notification, the member may have separated from service.
Iowa Code § 411.6(l)(a)(1989)(emphasis added).
42. Respondents argue that this section demonstrates a legislative policy encouraging early retirement of police officers. They argue that they relied on this policy in establishing the not-yet-33 maximum age hiring limit, and that this reliance justifies this age limit under the Janesville case cited previously. Respondents' Brief at 33- 34, 37. See Conclusions of Law No. 20-21.