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Burlington Commission on Human Rights, 1964-1965

Iowa Law Review, "State Civil Rights Statute: Some Proposals" Page 1116

1116     IOWA LAW REVIEW     [Vol. 49

nesses are sworn, both sides present evidence, objections and motions are made, and the commission makes findings of fact and issues an order. Strict rules of evidence normally do not apply in such administrative hearings, and most antidiscrimination statutes expressly so provide.
   If the commission finds by the preponderance of the evidence that discrimination has been practiced, it issues an appropriate order. Most statutes authorize orders compelling hiring, reinstatement, upgrading, back pay, restoration of union membership, and extension of equal treatment with regard to housing and public facilities.163 Additionally permitted are general orders prohibiting defendant from discriminating in violation of the act involved. Orders of antidiscrimination commissions may also require affirmative action such as the filing of compliance reports and the posting of notices declaring a policy of equal opportunity.
    The commission's orders are not self-enforcing, and it has no authority on its own to enforce them. Instead, to secure a contempt remedy, the commission relies upon judicial enforcement proceedings which it initiates. That is, any defendant violating an order of the commission renders himself liable to a contempt citation for violation of an injunction issued in a judicial proceeding instituted by the commission for the enforcement of its order. Such a citation usually means a heavy fine or even jail. Furthermore, commissions have had an overwhelmingly successful record in obtaining such enforcement orders from the courts. The appropriate court will generally issue an injunction enforcing the commission's order if there is "substantial evidence" in the record to support it. The question as to whether defendant has subsequently violated that order so as to render himself liable to a contempt citation for breach of the court's enforcement injunction will be determined by the court itself. No jury is required.163a
   Prior discussion affords only a general and superficial survey of the kind of administrative enforcement that has proved most effective and successful in this area. Certainly such an approach to enforcement has its complexities and difficulties. They are analyzed in detail elsewhere.164 However, with some imagination most of the deficiencies of this approach can be cured.165 Further, these deficiencies must be deemed minor when it is realized that an administrative enforcement
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163 See id. at 553.
163a See id. at 553-57, 571. See also People ex rel. N.Y. State Comm'n Against Discrimination v. Ackley-Maynes Co., 4 RACE REL. L. REP. 358 (N.Y. Sup. Ct. May 9, 1959).
164 See sources cited note 160 supra.
165 Note, 74 HARV. L. REV. 526, 531-32, 545-46, 550-51, 557 (1961).

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1116 IOWA LAW REVIEW [Vol. 49 nesses are sworn, both sides present evidence, objections and motions are made, and the commission makes findings of fact and issues an order. Strict rules of evidence normally do not apply in such administrative hearings, and most antidiscrimination statutes expressly so provide. If the commission finds by the preponderance of the evidence that discrimination has been practiced, it issues an appropriate order. Most statutes authorize orders compelling hiring, reinstatement, upgrading, back pay, restoration of union membership, and extension of equal treatment with regard to housing and public facilities.163 Additionally permitted are general orders prohibiting defendant from discriminating in violation of the act involved. Orders of antidiscrimination commissions may also require affirmative action such as the filing of compliance reports and the posting of notices declaring a policy of equal opportunity. The commission's orders are not self-enforcing, and it has no authority on its own to enforce them. Instead, to secure a contempt remedy, the commission relies upon judicial enforcement proceedings which it initiates. That is, any defendant violating an order of the commission renders himself liable to a contempt citation for violation of an injunction issued in a judicial proceeding instituted by the commission for the enforcement of its order. Such a citation usually means a heavy fine or even jail. Furthermore, commissions have had an overwhelmingly successful record in obtaining such enforcement orders from the courts. The appropriate court will generally issue an injunction enforcing the commission's order if there is "substantial evidence" in the record to support it. The question as to whether defendant has subsequently violated that order so as to render himself liable to a contempt citation for breach of the court's enforcement injunction will be determined by the court itself. No jury is required.163a Prior discussion affords only a general and superficial survey of the kind of administrative enforcement that has proved most effective and successful in this area. Certainly such an approach to enforcement has its complexities and difficulties. They are analyzed in detail elsewhere.164 However, with some imagination most of the deficiencies of this approach can be cured.165 Further, these deficiencies must be deemed minor when it is realized that an administrative enforcement ________________________ 163 See id. at 553. 163a See id. at 553-57, 571. See also People ex rel. N.Y. State Comm'n Against Discrimination v. Ackley-Maynes Co., 4 RACE REL. L. REP. 358 (N.Y. Sup. Ct. May 9, 1959). 164 See sources cited note 160 supra. 165 Note, 74 HARV. L. REV. 526, 531-32, 545-46, 550-51, 557 (1961).