(dissenting).
When Loras College determined it was necessary to reduce the faculty of its modern foreign language department from five to three members, it selected the two persons for discharge on the basis of age. Because I believe this is exactly the kind of discrimination which is prohibited by the Iowa Civil Rights Act, I respectfully dissent.
I. I do not believe section 601A.15 allows involuntary discharge of employees at any age. Rather I believe its concern is the financial integrity of retirement plans and benefit systems. Pension programs in effect at the time the sex and age discrimination provisions of the Civil Rights Act were adopted may have been premised in part upon the employer’s right to make distinctions based on sex and age. The actuarial soundness of those programs would be threatened if the statute removed the right to continue those distinctions. As to future pension programs, the exception permits distinctions based on sex and age only to the extent that those factors have actuarial significance in determining benefits payable in voluntary pension plans. Even in those plans, however, an employer’s contribution could not be made to depend on the employee’s sex or age.
As to the age factor, this essentially is the view of the dissent in United Air Lines, Inc. v. McMann, 434 U.S. 192, 98 S.Ct. 444, 54 L.Ed.2d 402 (1977), which involved the exception in section 623(f)(2) of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621-34 (1970). Although the federal exception refers only to age, it is otherwise similar to the Iowa exception. The majority in McMann held the federal exception allowed involuntary retirement of employees in the protected age group who were participants in a retirement plan which antedated the statute.
In 1978 Congress responded to the McMann decision and earlier similar decisions by two courts of appeals by amending the statute with the stated purpose of clarifying its original intention to prohibit involuntary retirement of persons in the protected age group. See H.R.Rep.No.950, 95th Cong., 2d Sess. 8 (1978), U.S.Code Cong. & Admin.News 1978, p. 504; S.Rep.No.493, 95th Cong., 1st Sess. 9-10 (1977). The amendments are the Age of Discrimination in Employment Act Amendments of 1978, Pub.L.No.95-256, § 2(a), 92 Stat. 189.
We have recognized enactments in similar circumstances, with considerably less evidence, to be clarifying rather than substantive. See Barnett v. Durant Community *151School District, 249 N.W.2d 626, 629-30 (Iowa 1977).
To ignore the federal legislative history is to ignore the Iowa legislative history because Iowa adopted amendments to the Iowa Civil Rights Act based on the federal amendments. See 1979 Sess., 68th G.A., ch. 35. These amendments included the addition of the following language to what appeared in the 1973 Code as section 601A.15: “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.” Id. § 10. This provision prohibits what this court today says section 601A.15 previously permitted. However, the legislature explained that it intended to do what Congress did in amending the ADEA:
This bill changes the mandatory retirement laws and age discrimination laws in response to the 1978 amendments to the federal Age Discrimination in Employment Act of 1967 and makes changes in the civil rights law regarding age discrimination.
Section 10 prohibits pension plans from requiring mandatory retirement prior to age seventy. The exemptions are the same as those provided by federal law.
1979 Sess., 68th G.A., H.F. 680, at 5-6 (committee explanation).
I believe this shows an intention of the Iowa legislature to adopt the intention of Congress and, in so doing, to clarify its original intention in enacting the exception. When the legislature bases a statute on a federal statute, we presume it intends what Congress intended. Stromberg Hatchery v. Iowa Employment Security Commission, 239 Iowa 1047, 1050, 33 N.W.2d 498, 500-01 (1948).
The Iowa statute previously provided no age limit on its prohibition against mandatory retirement. Before the 1978 amendments, the federal statute permitted mandatory retirement at age sixty-five. The amendments raised the limit to seventy. In bringing the Iowa statute into conformity, the legislature adopted the same age limit. Thus, the coverage of the Iowa statute was broader before the recent amendments, rather than more restrictive. At the very least, our legislature has signified its agreement with Congress that retirement plans and benefit systems which involuntarily retire individuals in the protected class on the basis of age have never been permitted by the exception. McMann has never been the law of Iowa. Congress has repudiated the McMann construction of the federal statute, and the Iowa legislature has shown it has always intended to proscribe age discrimination to at least the same extent.
II. This construction of the Act is also supported by comparing the Iowa prohibition against age discrimination with its prohibition against sex discrimination.
The amendments prohibiting sex discrimination were added to the Act in 1970. 1970 Sess., 63d G.A., ch. 1058. The exception relating to retirement plans and benefit systems was part of those amendments. Id. § 5. The age discrimination amendments were enacted in 1972. 1972 Sess., 64th G.A., ch. 1032. As part of those amendments, age was added to the exception. Id. § 3.
From this it is clear the exception is intended to apply in the same way to distinctions in retirement programs based on sex and age. Thus, under the court’s construction, the exception could be used to force retirement of all members of one sex, if all members of that sex had the option at some point in the past to participate in a pension system which would be available upon involuntary retirement.
The same logic would uphold discharging two faculty members on the basis of sex rather than age if that were part of the Loras retirement plan. I do not believe the legislature intended that an employee could be involuntarily discharged on either basis, but if one is appropriate so is the other.
III. The majority’s assumption that the Act permits involuntary discharges based on age rests in part on rejection of federal court cases construing the ADEA.
*152However, when we previously refused to be persuaded by federal holdings in construing the Act, it was because we believed our statute was intended to afford broader coverage. See, e. g., Franklin Manufacturing Co. v. Iowa Civil Rights Commission, 270 N.W.2d 829, 831 (Iowa 1978); Quaker Oats Co. v. Cedar Rapids Human Rights Commission, 268 N.W.2d 862, 865-67 (Iowa 1978). In Franklin this led to a narrow construction of the same exception as is involved in this case. Today the Franklin holding is turned inside out. Federal holdings are now rejected because their construction of the federal exception is too narrow, and this court construes our similar exception more broadly. It is not necessary that the court follow federal cases to reach a contrary result; it is only necessary to follow the teaching of Quaker Oats and Franklin.
IY. Even if section 601A.15 allowed involuntary retirement of protected employees, I do not believe a non-participant in the pension system would come within the exception. This was the holding in Hodgson v. American Hardware Mutual Insurance Co., 329 F.Supp. 225 (D.Minn.1971). In that case the Secretary of Labor challenged a pension plan which provided for retirement of all male employees at age 65 and all female employees at age 62. It was applied to employees who had elected before enactment of the ADEA not to participate in the plan. The court held the plan violated the federal statute by prescribing mandatory retirement and also held the federal exception did not apply. On the latter point the court said:
Retirement at age sixty-two for Plan members is permitted [by section 4(f)(2)] only because it is pursuant to the Plan. The retirement ages are determined actu-arially and are part or parcel of the Plan. The defendant employer retires female Plan members at age sixty-two because it is compelled to do so under the terms of the Plan. However, retirement of nonmembers is not done because the plan compels it but because the employer desires to do so. [Defendant] probably has many sound business reasons for doing so — encouraging Plan membership, Plan member morale, etc. — but § 4(a) of the Act is a clear Congressional determination that the overall economic interests of the country, as served through older worker employment, override such parochial interests of employers.
Id. at 228. The court conceptually equated the retirement policy with refusing to hire a sixty-three year old woman because of the plan, a practice which clearly would be prohibited. Id. at 229. The court also relied on an interpretive bulletin of the Secretary of Labor which stated the federal exception did not apply to non-participating employees. Id. at 228-29. See 29 C.F.R. § 860.-110(b) (1978).
I am unable to see any significance in the fact the federal exception is framed in slightly different language. The federal exception refers to a “bona fide employee benefit plan.” The Iowa exception refers to “any retirement plan or benefit system.” However, we have held “benefit system” means a benefit system which is part of a retirement plan. Franklin Manufacturing Co. v. Iowa Civil Rights Commission, 270 N.W.2d at 832. Similarly, the Iowa retirement plan must also be “bona fide” because it cannot be “a mere subterfuge adopted for the purposes of evading the provisions of this [Act].” § 601A.15; see Walker Manufacturing Co. v. Industrial Commission, 27 Wis.2d 669, 683, 135 N.W.2d 307, 315 (1965) (holding there is no essential difference between statutes using “bona fide” and those using “subterfuge”).
I would follow the American Hardware case. It is difficult to understand how the American Hardware result can be characterized as “absurd.” Under this court’s opinion, Dr. Schuster is denied the protection of the Civil Rights Act on the basis of a decision he made when he could not have known of that effect. In contrast, participants in the pension plan receive a valuable financial benefit in exchange for their agreement to subject themselves to the Lo-ras retirement policy. Moreover, Loras has not had to contribute toward a pension for Dr. Schuster.
*153Other states have expressly recognized a non-participation option which produces the result which this court denigrates. Statutes in Connecticut and Georgia expressly allow employees to work beyond ages fixed in retirement plans in exchange for waiver of pension benefits. See Conn.Gen.Stat. §§ 31-126b, 31-126e (1979); Ga.Code § 54-1102 (1975). In California even a participating employee can continue to work without losing accrued benefits. Cal.Lab.Code § 1420.15 (West Supp.1979).
In sum, I would reverse the trial court on either of two alternative grounds. First, the Civil Rights Act in effect at the time relevant here prohibited mandatory retirement at any age. Second, even if the exception in section 601A.15 were otherwise applicable, it would not apply to non-participating employees.
LeGRAND, ALLBEE and LARSON, JJ., join this dissent.