IV. The Complainant Is "Disabled" Under the Iowa
Civil Rights Act:
A. The Commission Did Not Exceed Its Statutory Authority in
Enacting Rules Concerning "Perceived Disability":
5. For any claim of disability discrimination to be given effect under Iowa law, it must be shown that the Complainant falls within the protected class of the "disabled". Falczynski v. Amoco Oil Co., 533 N.W.2d 226, 231 (Iowa 1995). Therefore, issues which are concerned with what constitutes a "disability" under Iowa law and whether Complainant Martin falls within that category shall be considered first.
6. The Respondents argue that the Commission exceeded its statutory authority in enacting rules which attempt "to extend the statutory definition to include someone regarded as having such an impairment[;] to include rules involving perceived as constituting such a limitation[;] or perceived as having such an impairment." (Reply Brief at 3). If the Respondents are correct, the case ends here, since the Complainant and Commission acknowledge that the Complainant's case is based on these Commission rules. (Complainant's Brief at 2; Commission's Brief at 9). The complaint itself refers to "perceived physical disability." (Notice of Hearing).
7. The pertinent statutory provisions state:
"Disability" means the physical or mental condition of a person which constitutes a substantial handicap, 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.
Iowa Code S 601A.2(4) (1991)(emphasis added).
8. The pertinent rule provisions state:
8.26(1) The term "substantially handicapped person" shall mean any person who has a physical or mental impairment which substantially limits one or more major life activities; has a record of such impairment; or is regarded as having such an impairment.
8.26(2) The term "physical or mental impairment" means:
a. Any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological; musculoskeletal; special sense organs; respiratory, including speech organs; cardiovascular; reproductive; digestive; genito-urinary; hemic and lymphatic; skin; and endocrine;
. . .
8.26(3) The term "major life activities" means functions such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.
. . .
8.26(5) The term "is regarded as having an impairment" means:
a. Has a physical or mental impairment that does not substantially limit major life activities but that is perceived as constituting such a limitation;
b. Has a physical or mental impairment that substantially limits major life activities only as a result of attitudes of others toward such impairment; or
c. Has none of the impairments defined to be "physical or mental impairments," but is perceived as having such an impairment.
161 IAC 8.26 (formerly 240 IAC 6.1)(emphasis added).
9. In 1987, the Iowa Supreme Court first recognized that a complainant who is either actually disabled or who is perceived by the employer to be disabled is "disabled" as that term is used with respect to the Act's prohibitions against disability discrimination in employment. See Frank v. American Freight Systems, Inc., 398 N.W.2d 797, 800 (Iowa 1987)(citing Iowa Code S 601A.6). In making the determination that those perceived by the employer to be disabled are covered by the Act, the Court relied upon the same rules cited by the Complainant and the Commission in this case. See id. at 799, 800 (quoting and citing 240 IAC 6.1). Although these rules have since been renumbered, their content has not changed. Compare 240 IAC 6.1 et. seq.(1987) with 161 IAC 8.26 (1991) et. seq. See Annear v. State, 454 N.W.2d 869, 875 n.6 (Iowa 1990). The Court emphasized the word "perceived" in the subsection dealing with perceived impairments. See Frank v. American Freight Systems, Inc., 398 N.W.2d 797, 799 (Iowa 1987)(quoting 240 IAC 6.1(5)(c)(now 161 IAC 8.26(5)(c)). The Court relied upon these rules in determining that "[the plaintiff] is 'disabled' as that term is used in Iowa Code section 601A.6". See id. at 799-800.
10. The Court had previously applied rule 240 IAC 6.1(5)(c)(now 161 IAC 8.26(5)(c)) in Sommers v. Iowa Civil Rights Comm., 337 N.W.2d 470, 477 (Iowa 1983). The Commission had rejected the claim of a transsexual that she was perceived to be disabled. Id. at 475, 477. In affirming the Commission's action, the Court held "[a]n adverse societal attitude does not mean that the transsexual is necessarily perceived as having a physical or mental impairment. . . . [The] discrimination [is] based on societal beliefs that the transsexual is undesirable, rather than beliefs that the transsexual is impaired physically or mentally as that term is used in the statute and defined in the rule." Id. at 477. While the validity of the rule was not decided, the Commission's interpretation of its rules "was not contrary to the statute or rule nor arbitrary, capricious or unreasonable." Id. at 476.
11. In Brown v. Hy-Vee, 407 N.W.2d 598 (Iowa 1987), the Court held the plaintiff did not fall within this rule because "[n]either [the plaintiff] nor his employer perceived or regarded the [plaintiff's back] injury as a substantial handicap." Id. at 600.
12. In 1990, the Court specifically addressed the question of whether paragraph (5)(c) of the rules, dealing with perceived disability, was beyond the authority granted by the statute. Annear v. State, 454 N.W.2d 869, 875 (Iowa 1990)(construing 240 IAC 6.1(5)(c)(now 161 IAC 8.26(5)(c)). The complainant argued that "the real reason for not hiring him was a perceived physical disability. He presents his claim as one in which the [employer's] representatives in the hiring process incorrectly believed that the disability [a back injury] which caused his separation from employment [with the same employer] in 1981 continued to exist in March of 1982 [when the employer failed to hire him]." Id. at 874. The employer denied that disability had anything to do with the failure to hire complainant. Id. It proffered legitimate reasons for its action which had nothing to do with disability. Id. There were no facts to support complainant's claim. Id. at 875. The court held the rule was within the statutory authority of the Commission as long as application of the rule was limited in certain respects:
The issue thus becomes whether, if the State did not hire plaintiff because it believed he was physically unable to do the work and was wrong in that assessment, this error of judgment would constitute and unlawful discrimination in hiring under section 601A.6(1)(a). We believe it does not. To literally apply the language of subparagraph c to this set of facts would extend the scope of an employment discrimination claim beyond the breadth of the statute by which such claims have been created. Agency action in promulgating a rule may not exceed its statutory authority. Sommers v. Iowa Civil Rights Comm'n., 337 N.W.2d 470, 475 (Iowa 1983).
In order for the definition contained in subparagraph c of these regulations to be given effect under the act, it must be limited to situations involving a categorical organic disorder of the body. Cf. Sommers, 337 N.W.2d at 476. The definition may not be extended to differences of opinion over the degree of recovery from a disabling injury, notwithstanding a lack of reasonable basis for the employer's belief.
Id. Under this authority, and with the limitations stated,
the Commission did not exceed its statutory authority in enacting
rule 161 IAC 8.26(5)(c) concerning perceived disability.
B. The Use of the Word "Perceived" In Commission
Rule 161 IAC 8.26(5)(c) Does Not Require That the Respondent Employer
Have Either Personally Observed the Complainant or Seen Her Medical
Reports and Concluded From Such Observation or Reports That She
Is Disabled:
13. The Respondents argue that because Mr. McIvor did not personally observe Complainant Martin from the time her sick leave began until August 12, 1991, and had not received medical reports describing her cancer during that time, he could not have perceived that she was disabled when he spoke to her on August 2, 1991. (Reply Brief at 5-7). Respondents relied on particular definitions of "perceived":
The word "perceived" is defined in Websters New Collegiate Dictionary "1973 edition" as follows: "(1) To attain awareness or understanding of; and (2) to become aware of through the senses esp: see, observe.
The word perceive is defined in the American Heritage Dictionary of the English Language, (1969 Edition) as: "(1) To become aware of directly through any of the senses; especially to see or hear; (2) to take notice of; observe, detect; . . . "
(Reply Brief at 5-6).
14. The meaning of the word "perceive" is not, however, limited to situations involving observation with the senses or acquiring information from medical reports. Other definitions of the word "perceive" are found in the dictionaries relied on in the majority and the dissenting opinions interpreting other language of the Iowa Civil Rights Act in United States Jaycees v. Iowa Civil Rights Commission, 427 N.W.2d 450, 454, 457 (Iowa 1988)(the massive Webster's Third New Int'l Dictionary relied on by majority; Webster's Ninth New Collegiate Dictionary relied on by dissent). The secondary definition in both of those dictionaries is "to become aware of through the senses." Webster's Third New Int'l Dictionary 1675 (1993); Webster's Ninth New Collegiate Dictionary (1987). The primary definitions in Webster's Third New Int'l Dictionary (1993) are "1.a: to become conscious of. [examples and synonyms omitted]. b: to recognize or identify esp. as a basis for or as verified by action. [example omitted]." Id. at 1675. The primary definition given in Webster's Ninth New Collegiate Dictionary (1987) is "1. to attain awareness or understanding of." Id. at 872. This is also the primary definition in the 1973 edition quoted by Respondents. (Reply Brief at 5).
15. Under these primary definitions of "perceive", it is not necessary to show the employer obtained awareness solely through means of direct observation or medical reports. Under a liberal construction or interpretation of the rule covering persons who actually have "none of the impairments defined to be 'physical or mental impairments,'" 161 IAC 8.26(5)(c), an employer may have "perceived [such person] as having such an impairment", id., if the employer "[became] conscious," "recognize[d] or identif[ied]" Webster's Third New Int'l Dictionary 1675 (1993), or "attain[ed an] awareness or understanding," Webster's Ninth New Collegiate Dictionary 872 (1987), that the person had such an impairment. Under these definitions, there are no limitations on how the employer became aware or conscious of, or recognized or identified the impairment.
C. Proof of "Perceived Disability" Under Commission
Rule 161 IAC 8.26(5)(c) Refers to the Respondent Employer's Perception
That the Complainant Is Disabled:
16. Respondents argue that, under rule 161 IAC 8.26(5)(c), Complainant Martin must be perceived by the public or employers generally to be impaired and not just by the employer charged with discrimination. (Reply Brief at 7-9). This proposition is contrary to the greater weight of controlling and persuasive legal authority.
17. The Iowa Supreme Court's decision in Frank v. American Freight Systems, Inc., 398 N.W.2d 797 (Iowa 1987) was discussed previously. In that case, the employer, American Freight, argued that the plaintiff, Frank, was actually disabled under the statutory and rule provisions governing disability. Id. at 800. Frank argued that "he is not actually disabled but that American Freight perceives him to be and he is therefore considered to be disabled for discrimination purposes under commission rules 6.1(1) and (5)." Id. (citing rules 240 IAC 6.1(1) and (5)(now 161 IAC 8.26(1) and (5)). The Court concluded, "[i]n either event, Frank is 'disabled' as that term is used in Iowa Code section 601A.6." Id. (citing Iowa Code S 601A.6, now S 216.6). This controlling authority stands for the proposition that either an actual disability or a perception by the employer that the employee is disabled will suffice to support the conclusion that the employee is disabled with respect to the Act's provisions, and the Commission's rules, addressing disability discrimination in employment. Id.
18. The Respondents suggest that the decision in Annear means "that it is not the perception of the sole employe[r] that governs as it recognizes that a mistake in judgment cannot be the basis of a finding of discrimination." (Trial Brief at 11). The Court's comments, previously quoted, about a hypothetical situation where an employer might, through an error in judgment, believe that an applicant was physically unable to do the work, do not, however, indicate that the employer's perception of disability is never at issue in a perceived disability case. See Annear v. State, 454 N.W.2d 869, 875 (Iowa 1990). See Conclusion of Law No. 12. Rather, the court held only that the third part of the definition of the term "is regarded as having an impairment", [now at 161 IAC S 8.26(5)(c)], "may not be extended to differences of opinion over the degree of recovery from a disabling injury, notwithstanding a lack of reasonable basis for the employer's belief." Annear at 875.
19. In addition, the Iowa Supreme Court has recognized that the federal Rehabilitation Act of 1973, and the rules and cases under that act, are persuasive authorities with respect to the Iowa Civil Rights Act and rules. See Boelman v. Manson State Bank, 532 N.W.2d 73, 79 (Iowa 1994); Probasco v. Iowa Civil Rights Commission, 420 N.W.2d 432, 435 (Iowa 1988) . While the Court has not yet found that the Americans With Disabilities Act statute, rules, and cases are persuasive authorities with respect to the Iowa Civil Rights Act, there are reasons to believe that it may do so. In accordance with Congressional intent, the ADA statutory definition of "disability" is adopted from the Rehabilitation Act's definition of the term "individual with handicaps." EEOC, Americans With Disabilities Handbook I-25 (1991)(EEOC Interpretive Guidance to 29 C.F.R. S 1630.2(g)). This was done so that Rehabilitation Act caselaw could be applied to this ADA definition. Id. Similarly, the ADA rules reflect the congressional intent that they be modeled after the Department of Education's regulations implementing the Rehabilitation Act of 1973. EEOC, Americans With Disabilities Handbook I-3 (1991)(citing 34 CFR part 104). Given these similarities between the Rehabilitation Act and the ADA, it would appear that the ADA statute, rules, and cases would also constitute persuasive authority with respect to the Iowa Civil Rights Act.
20. These federal rules and statutes, like the Commission rules, address persons "regarded as having such an impairment" Compare e.g. 161 IAC 8.26(1) with 29 U.S.C. S 706(8)(B) (Rehabilitation Act of 1973); 42 U.S.C. S 12102(2)(c) (Americans With Disabilities Act-ADA); 29 C.F.R. S 32.3 (Dept. of Labor Rehabilitation Act rules); 34 C.F.R. S 104.3(j) (Dept. of Education Rehabilitation Act rules), 45 C.F.R. S 84.3(j)(1)(Dept. of Health and Human Services Rehabilitation Act rules); and 29 C.F.R. S 1630.2(g) (EEOC ADA employment rules). The federal rules recognize that the key question with respect to disability discrimination against persons with no actual impairment is whether the employer treated the complainant as if he had a substantially limiting impairment. See e.g. 29 C.F.R. S 32.3(5)(iii)(the "recipient" of federal funds under the Rehabilitation Act of 1973); 34 C.F.R. S 104.3(j)(2)(iv)(c)(same); 45 C.F.R. S 84.3(j)(2)(iv)(C)(same); 29 C.F.R. S1630.2(1)(the "covered entity" under the ADA).
21. The similarity between the federal rules and Iowa rules may best be demonstrated by quoting the Department of Health and Human Service's (HHS) Rehabilitation Act rules which may be compared to the Commission's rules set forth above. The United States Supreme Court found these rules to be of "significant assistance" in determining whether an individual is handicapped. School Board of Nassau County v. Arline, 480 U.S. 273, 279 (1987). "[T]hese regulations were drafted with the oversight and approval of Congress" and "provide 'an important source of guidance on the meaning of S 504.'" Id. The HHS rules state:
(j) "Handicapped person." (1) "Handicapped person" means any person who (i) has a physical or mental impairment which substantially limits one or more major life activities, (ii) has a record of such impairment, or (iii) is regarded as having such an impairment.
(2) As used in paragraph (j)(1) of this section, the phrase:
(i) ["physical or mental impairment" definition which is identical to that in the Iowa Civil Rights Commission's rules].
. . .
(iv) "Is regarded as having an impairment" means (A) has a physical or mental impairment that does not substantially limit major life activities but that is treated by a recipient as constituting such a limitation; (B) has a physical or mental impairment that substantially limits major life activities only as a result of the attitudes of others toward such impairment; or (C) has none of the impairments defined in paragraph (j)(2)(i) of this section but is treated by a recipient as having such an impairment.
45 C.F.R. 84.3(j)((2)(1989).
22. The Iowa rule dealing with persons who have no impairments, but are perceived as having such an impairment, 161 IAC 8.26(5)(c), is analogous to the third part of the ADA's "statutory definition to the term 'disability' . . .[which] covers . . . persons who have no impairments but nonetheless are treated as having substantially limiting impairments." EEOC Compliance Manual, Volume 2, EEOC Order 915.002, Section 902.8 (emphasis added)(as printed in BNA, Fair Employment Practice Manual 405:7278 (1995)). While the exact language of the regulations differ in that the Iowa Civil Rights Commission's rules refer to a person who is "perceived as having such an impairment," 161 IAC 8.26(5)(c), and the EEOC's rules refer to a person who "is treated by a covered entity as having a substantially limiting impairment," 29 C.F.R. S 1630.2(1), the Compliance Manual comments indicate that the EEOC's rules are also concerned with the perception of the employer:
[T]his part of the definition is directed at the employer rather than at the individual alleging discrimination. The issue is whether the employer treats the individual as having an impairment that substantially limits major life activities. Thus, as the legislative history of the ADA notes, "[t]he perception of the covered entity is a key element of this test." House Judiciary Report at 30. Because it is the employer's perception that is at issue, it is not necessary that the individual alleging discrimination actually have a disability or impairment. It also is not necessary that the employer's perception of the individual be shared by other employers. The individual is covered by this part of the definition if (s)he can show that the employer "made an employment decision because of a perception of disability based on 'myth, fear or stereotype.. . .'" 29 C.F.R. p. 1630 app. S 1630.2(l); see also House Judiciary Report at 30-31.
EEOC Compliance Manual, Volume 2, EEOC Order 915.002, Section
902.8 (emphasis added)(as printed in BNA, Fair Employment Practice
Manual 405:7279 (1995)). The EEOC's Interpretive Guidance to its
rules also supports this view: "An individual satisfies the
third part of the 'regarded as' definition of 'disability' if
the employer or other covered entity erroneously believes the
individual has a substantially limiting impairment that the individual
actually does not have." EEOC, Americans With Disabilities
Handbook I-35 (1991). The Interpretive Guidance also rejects the
proposition that it must be shown that "others in the field"
perceived the individual as being disabled. Id. These are persuasive
authorities that it is the perception of impairment held by the
Respondent employer, and not that of employers in general or of
the general public, which is determinative in cases of perceived
disability.
D. The Return of Other Employees to Their Full-Time Positions
After Leaves for Cancer Does Not Establish That the Respondents
Did Not Perceive Complainant Martin to Be Disabled When These
Leaves Occurred Long After Martin Filed Her Complaint:
23. Respondents argue that they could not have perceived Complainant Martin to be disabled due to her cancer because other employees returned to their full-time positions after their leaves for cancer treatment were concluded. (Reply Brief at 10). These leaves, however, occurred long after the filing of the complaint in this case. See Finding of Fact Nos. 34. It has been long recognized by the courts and this Commission that substantial changes in employment practices or policies:
"in the face of litigation are equivocal in purpose, motive, and performance." Reed v. Arlington Hotel, 476 F.2d 721, 724 (8th Cir. 1973)(quoting Jenkins v. United Gas Corporation, 400 F.2d 28, 33 (5th Cir. 1968) and citing Parham v. Southwestern Bell Telephone Co., 433 F.2d 421, 426 (8th Cir.1970). See also Teamsters v. United States, 431 U.S. 324, 341-42 (1977)("The company's later changes in its hiring . . . policies could be little comfort to the victims of its earlier discrimination and could not erase its previous illegal conduct").
Cristen Harms, XI Iowa Civil Rights Commission Case Reports
89, 123 (1992). By analogy, favorable post complaint treatment
of employees with cancer tells us little about whether or not
the Complainant was either discriminated against or perceived
as disabled. If there had been evidence concerning the pre-complaint
treatment of other employees with cancer, it might have had some
probative value on this question.
E. Cancer Can Be a "Disability" or "Perceived
Disability" Under the Iowa Civil Rights Act:
1. Cancer Can Be a Disability Under the Act:
24. The meaning of "disability" under the statute is a question of law. Consolidated Freightways v. Cedar Rapids Civil Rights Commission, 366 N.W.2d 522, 526 (Iowa 1985). The legal question presented, then, under the statute and rules in effect in 1991, is whether cancer "can constitute a physical . . .condition of a person which constitutes . . . a substantial handicap." See Id. at 526-27; Iowa Code S 601A.2(4)(1991)(as amended to delete the "unrelated to such person's ability to engage in a particular occupation" language also applied in Consolidated Freightways at 526-27); 161 IAC S 8.26(1)-(3). This is a separate question from that of whether Complainant Martin had a protected disability on the basis that she was afflicted with cancer. See Consolidated Freightways, 366 N.W.2d at 527.
25. In determining whether cancer can be a disability under the statute, the Commission adopts the following definition of "cancer." Cancer is:
[a] general term frequently used to indicate any of various types of malignant neoplasms, most of which invade surrounding tissues, may metastasize to several sites, and are likely to recur after attempted removal and to cause death of the patient unless adequately treated.
Stedman's Illustrated Medical Dictionary 216 (5th Unabridged
Lawyers Ed. 1982). A "neoplasm" is a "new growth"
or "tumor". Id. at 930. Official notice is taken of
these definitions. Iowa Code S 17A.14. Fairness to the parties
does not require that they be given an opportunity to contest
these facts.
26. A physical impairment consisting of a malignant tumor which has the capacity to invade and destroy surrounding tissue, to metastasize to other areas of the body, to recur after removal, and to cause death unless properly treated, has an "inherent propensity to [substantially] limit one or more of the [affected] individual's major life activities independent of the perceptions of others." Consolidated Freightways v. Cedar Rapids Civil Rights Commission, 366 N.W.2d 522, 527 (Iowa 1985). As such, in accordance with the Iowa Supreme Court's prior interpretation of the Commission rules on disability, and the 1991 statutory definition of disability, cancer can be a physical condition of a person which constitutes a substantial handicap, i.e. a "disability" under the Act. See id. at 527, 528 (citing Sommers v. Iowa Civil Rights Commission, 337 N.W.2d 470, 476-77 (Iowa 1983)); Iowa Code 601A.2(4)(1991).
27. The above mode of analysis follows that used by the Iowa Supreme Court to determine that alcoholism fell within the definition of disability as used in the Cedar Rapids human rights ordinance. See Consolidated Freightways at 526-28. The ordinance was, at that time, required to be consistent with the Iowa Civil Rights Act and was "almost identical" with respect to the Act's definition of disability. See id. at 526. The Commission rules and prior Iowa Civil Rights Act cases were relied upon in making the determination as to whether alcoholism was a disability. Id. at 526-28. The Court reversed the district court's "determination that the commission's finding that alcoholism is a disability was not supported by substantial evidence." Id. at 528. Part of the reason for the reversal is that an adjudicatory body may use dictionary definitions of a physical condition in determining whether that condition comes within the statutory definition of disability. Id. This is permitted as a form of judicial notice, see id.(citing e.g. Iowa R. Evid. 201(a)), and, therefore, in administrative proceedings, as official notice, of a legislative fact. See Iowa Code 17A.14.
2. Cancer Can Be A "Perceived Disability" Under the
Act:
a. Limitation on "perceived disability" set forth in Annear:
28. Complainant Martin claims a perceived, not an actual disability. See Finding of Fact No. 2, 21. The pertinent perceived disability rule states "The term "is regarded as having an impairment" means: . . . c. Has none of the impairments defined to be "physical or mental impairments," but is perceived as having such an impairment." 161 IAC 8.26(5)(c). As previously noted, the Court in Annear v. State held that, in order for this rule to be given effect, "it must be limited to situations involving a categorical organic disorder of the body. Cf. Sommers, 337 N.W.2d at 476." Annear, 454 N.W.2d at 875 (emphasis added). The court went on to hold that "[t]he definition may not be extended to differences of opinion over the degree of recovery from a disabling injury, notwithstanding a lack of reasonable basis for the employer's belief."Id.
b. The meaning of the phrase "situations involving a categorical. organic disorder of the body" is not certain.
29. The citation signal "Cf." means that Sommers "supports a proposition different from the main proposition but sufficiently analogous to lend support." Harvard Law Review Assn., Uniform System of Citation 9 (1981). "The citation's relevance will usually be clear to the reader only if it is explained [in a parenthetical]." Id. Unfortunately, the court did not explain the relevance of this cite to Sommers. Annear at 875. Therefore, there is some question about what the reference to "situations involving a categorical organic disorder of the body" means. Autry, Iowa Disability Discrimination in Employment: An Overview and Critique 40 Drake L. Rev. 305, 342-43 (1991). The complete phrase "categorical organic disorder of the body" is found in no statute, rule or case other than Annear. See Annear at 875. An examination of the Sommers case is necessary to resolve this question.
c. The Sommers discussion of the rule defining physical impairment.
30. The Sommers cite refers to the following paragraphs ruling on Sommers's claim that transsexualism is an actual physical disability:
The implementing rule defines both physical and mental impairment. Sommers claims she has a medical condition that has its roots in physical or mental factors. Because her claim lacks further specificity, we will examine the relevant portions of each definition.
The portion of the definition of "physical impairment" that is relevant here refers to a "physiological disorder or condition" or "anatomical loss." [Now at 161 IAC 8.26(2)(a)]. This definition is confined to the characteristics of the body organs and whether such organs are normal and healthy. Any impairment is substantial only if it substantially interferes with the person's ability to perform functions "such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working." [Now at 161 IAC 8.26(3)].
. . .
Under the implementing rule, a physical impairment relates to an organic disorder of the body. No claim is made that a transsexual has an abnormal or unhealthy body. The Commission could reasonably conclude that under its rule Sommers had no physical impairment.
Sommers at 476 (emphasis added).
d. Explication of the use of the word "categorical".
31. The Sommers court noted the vague, general, unspecified claim that transsexualism was "a medical condition that has its roots in physical or mental factors." Sommers at 476. There was no claim that "a transsexual has an abnormal or unhealthy body." Id. Therefore, Sommers's claim did not fall within the implementing rule defining physical impairment. Id. Apparently, this vague, unspecified claim of a physical disorder was not what the Annear court would later refer to as one of a"categorical organic disorder of the body." Annear at 875. It was not a "direct, explicit, express, unconditional" claim of a physical disorder.. I Compact Edition of the Oxford English Dictionary 355 (1971)(definition of "categorical").
e. Explication of the phrase"organic disorder of the body."
32. In Sommers, the Court's references to "organic disorder of the body," "an abnormal or unhealthy body," "characteristics of the body organs," and "body organs" were made while relying on and explaining the Commission's rule defining physical impairment. Sommers at 476 (explaining 240 IAC 5.6(2)(a), now 161 IAC 8.26(2)(a)). These references were used to characterize the rule without having to restate it or list all the body systems set forth in the rule. Sommers at 476. The rule lists various categories of body systems which may be affected by a "physiological disorder or condition,, cosmetic disfigurement, or anatomical loss." 161 IAC 8.26(2)(a). Thus, if it is shown, as provided by the rule, that a "physiological disorder or condition, cosmetic disfigurement, or anatomical loss affect[s] one or more of the . . . body systems [listed in the rule]", id., it constitutes a "physical impairment." Id.
33. Since the phrase "organic disorder of the body" was used with reference to the necessity of "a claim of an abnormal or unhealthy body," Sommers at 476, it is clear that "organic" as used in that phrase refers not only to disorders "relating to an organ," but to disorders "relating to [the] organism" or "the living individual." Stedman's Illustrated Medical Dictionary 993 (5th Unabridged Lawyers Ed. 1982)(definitions of "organic" and "organism"). This interpretation is consistent with the rule which addresses physical disorders "affecting one or more of the following body systems," some of which are "organs." 161 IAC 8.26(2)(a). It is also consistent with the statement "[t]his [rule] definition is confined to the characteristics of the body organs and whether such organs are normal and healthy." Sommers at 476. Given the plain language of the rule, it is clear the Court treats "body systems" and "body organs" as synonymous concepts. See Sommers at 475, 476. The phrase "body organs" does not appear in the rule. See id at 475 (quoting rule 240 IAC 6.1(2)(a) now 161 IAC 8.26(2)(a)).
34. "Disorder" as used in the phrase "categorical organic disorder of the body" and the rule, 161 IAC 8.26(2)(a), is a "disturbance of function, structure, or both resulting from a genetic or embryologic failure in development, or from exogenous factors such as poison, injury, or disease." Stedman's Illustrated Medical Dictionary 414 (5th Unabridged Lawyers Ed. 1982).
f. Explanation of the limitation whereby the rule at 161 IAC 8.26(5)(c) is given effect only "in situations involving a categorical organic disorder of the body."
35. Unlike Sommers, Sommers at 476, the rule considered in Annear, Annear at 875, and this case is concerned with perceived physical impairment and not actual physical impairment. 161 IAC 8.26(5)(c). It may be given effect only "in situations involving a categorical organic disorder of the body." Annear at 875. The situations the court was referring to were ones where the perceived impairment does not involve a vague, unspecified claim of a perceived medical condition which has its roots "in physical or mental factors." Sommers at 476. The perceived impairment must be a disorder which, if it were real, would involve "an abnormal or unhealthy body." See id. This requirement could also be met by proof of a perception of a disorder which affects the body systems as set forth in the rule defining physical impairment. 161 IAC 8.26(2)(a). See Autry, Iowa Disability Discrimination in Employment: An Overview and Critique 40 Drake L. Rev. 305, 343 (1991)(possible contradiction between rule governing perceived disability where no actual impairment exists and phrase "situations involving a categorical organic disorder of the body" is resolved if the phrase refers to defendant's perception of plaintiff having such a disorder as opposed to requiring plaintiff to have the disorder).
g. Application to this case of the limitation to cases involving perceived disability of recurring cancer:
36. There are three reasons why a perception that a complainant had cancer or, as in this case, a recurring or future cancer, would be "a situation involving a categorical organic disorder of the body." Annear at 875. First, such a claim of a perceived impairment is not a vague or unspecified claim of impairment. See Sommers at 476. Second, a perception of a body with cancer is certainly a perception of an abnormal or unhealthy body. See id. Under the Consolidated Freightways analysis set forth above, cancer can be an actual physical disability. See Conclusions of Law Nos. 24-27. Third, under the definition of cancer set forth above, see Conclusion of Law No. 25, it is evident that it always affects some body system and, because of its propensity for metastasizing to other locations in the body, could affect any of them. (For example, the cancer which afflicted Complainant Martin in 1991 affected her lymphatic system. See Finding of Fact No. 9.) It would therefore fall within the rule defining physical impairment. See 161 IAC 8.26(2)(a).
h. Application to this case of the holding that "the definition may not be extended to differences of opinion over the degree of recovery from a disabling injury."
37. As previously noted, the definition of physical impairment "may not be extended to differences of opinion over the degree of recovery from a disabling injury." Annear at 875. This case is not concerned with an injury, but with cancer. See Finding of Fact No. 21. In any event, there is no indication that there was a difference of opinion over whether or not the Complainant had recovered from her present cancer. See Finding of Fact No. 24A.
38. An accurate interpretation of this aspect of the court's ruling in Annear was set forth by one commentator:
[t]he most plausible interpretation of the court's ruling is that a completely recovered and unimpaired person is not "disabled" just because his employer believes the person has not yet recovered. Under this reading the employer believes the employee is recovering but has not recovered enough to do the job. Thus, there is no perception of permanent or long-term disability, but merely a "difference of opinion" over the speed of recovery.
Autry, Iowa Disability Discrimination in Employment: An Overview
and Critique 40 Drake L. Rev. 305, 343 (1991). Cf. Thompson v.
City of Arlington, 838 F. Supp. 1137, 1152 (N.D. Tex. 1993)(placement
of police officer on restricted duty until officer provides mental
health records requested by employer to show she is qualified
to return to duty "does not show that City regards her as
having an impairment of the kind contemplated by ADA"); Paegle
v. Dept. of Interior, 813 F. Supp. 61, 65 (D.D.C. 1993)(placement
of officer on temporary, limited duty until expected recovery
does not mean employer regarded him as disabled).
39. The perception here was that the Complainant's cancer would recur and cause future extended absences affecting her availability for work. See Finding of Fact No. 22-28, 30. This is precisely the type of situation anticipated by the Rehabilitation Act of 1973 and the administrative rules promulgated thereunder. Senator Humphrey's concern in this regard was set forth in his letter to the Secretary of Health, Education and Welfare, on March 14, 1977, to the Secretary of Health, Education and Welfare upon HEW's promulgation of the first rules implementing section 504, the nondiscrimination clause of the Rehabilitation Act:
Early diagnosis and improved methods of treatment have lowered the recurrence rate of major forms of cancer. At the same time, a growing number of former cancer patients are seriously and unjustly impaired in their ability to fulfill personal, family, and community responsibilities by their inability to secure employment upon recovery. This situation is too frequently the result of irrational fears or prejudice on the part of employers or fellow workers.
123 Cong. Rec. 13515 (1977).
40. This letter was cited and quoted with approval by the United States Supreme Court when discussing the myths "that make it difficult for former cancer patients to secure employment." School Board of Nassau County v. Arline, 480 U.S. 273, 284 n.13 (1987). The court also cited a medical text which documented job discrimination against cancer patients. Id. (citing Feldman, "Wellness and Work" in Psychosocial Stress and Cancer 173-200 (C. Cooper ed. 1984). One of the examples described in the text concerned the refusal to hire former cancer patients whose doctors could not guarantee the illness would not return. Psychosocial Stress and Cancer at 190. In passing the Rehabilitation Act of 1973, "Congress acknowledged that society's accumulated myths and fears about disability and disease are as handicapping as are the physical limitations that flow from actual impairment." Arline, 480 U.S. at 284. These Rehabilitation Act authorities are persuasive authority that the type of perceived disability discrimination which occurred in this case would also violate the Iowa Civil Rights Act. See Boelman v. Manson State Bank, 532 N.W.2d 73, 79 (Iowa 1994)(Rehabilitation Act cases persuasive); Probasco v. Iowa Civil Rights Commn, 420 N.W.2d 432, 435 (Iowa 1988)(Rehab. Act rules and cases persuasive).
41. Under either the direct language of Annear, Annear at 875, or the interpretation of a commentator, Autry, Iowa Disability Discrimination in Employment: An Overview and Critique 40 Drake L. Rev. at 343, this case is not the type of situation which the Annear decision indicated should not be covered by the rule. This case is, however, representative of the forms of discrimination practiced against cancer patients set forth in the sources cited in the Arline case, as discussed above. Arline, 480 U.S. at 284 n.13. See Conclusions of Law Nos. 39-40.
F. The Complainant Met the Legal Standards for "Perceived
Disability": She Was a Substantially Handicapped Individual
As She Was Perceived as Having a Physical Impairment Which Substantially
Limited One or More Major Life Activities:
42. As previously noted, the Complainant was perceived as an individual with recurring cancer. It was inferred that Respondents' concern with the recurrence of the cancer was that it would cause her to miss work in the future for extended periods of time. See Finding of Fact No. 22, 30, 41. Complainant Martin had undergone surgery for cancer, had been hospitalized, and had then undergone outpatient radiation therapy. Her treatments necessitated an absence of sixteen weeks. The Respondents were aware of that treatment. See Finding of Fact No. 9, 32. Respondents perceived that Complainant Martin underwent chemotherapy, although she did not. Respondent McIvor also indicated that, at one point in her treatment, he was concerned that Complainant's ability to speak might be impaired even after the treatment was completed. See Finding of Fact No. 32. On August 12th, he suggested she apply for disability insurance. See Finding of Fact No. 11.
43. Under these circumstances, Complainant had a perceived disability. She was perceived by her employer to have a "physical condition . . . which constitutes a substantial handicap." Iowa Code S 601A.2(4)(1991). Expressed in terms of the applicable rules, she was a "substantially handicapped person," 161 IAC 8.26(1), who was "regarded as having," id., or "perceived as having," id. at 8.26(5)(c), a "physical . . . impairment which substantially limits one or more major life activities," id. at 8.26(2)(a), even though she then had no such impairment. See id. at 8.26(5)(c).
44. As previously discussed, a perception of recurring cancer is a perception of physical impairment under the Act. See Conclusion of Law No. 36. It would usually constitute a perception of a substantial handicap which substantially limits one or more life activities. See Conclusion of Law No. 43. "[T]here is little question that cancer history raises barriers to employment opportunities which are unrelated to a person's qualifications." Burris v. City of Phoenix, 2 A.D. Cas. 1251 (Az. Ct. App. 1993). "[T]he attitude of employers . . . toward [a] previous impairment may result in an individual experiencing difficult in securing retaining, or advancing in employment. [T]hose who have had . . . cancer often experience such difficulty." 41 C.F.R. 60-741.54 (App. A)(OFCCP affirmative action rules under the Rehabilitation Act).
1. The Perception That Complainant Had A Recurring Cancer Which
Would Cause Future Extended Absences From Work Is a Perception
of a "Substantial Handicap.":
45. "Any impairment is substantial only if it substantially interferes with the person's ability to perform functions 'such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working,'" Sommers v. Iowa Civil Right Commission, 337 N.W.2d 470, 476 (Iowa 1983)(quoting rule 6.1(2)(b), now 8.26(2)(b)), or other "major life activity." See 161 IAC 8.26(2)(b).
46. A disability which actually caused extended absences from work would substantially interfere with work. This is so because it would limit the employee's "overall ability to work or learn." Henkel Corp. v. Iowa Civil Rights Commission, 471 N.W.2d 806, 810 (Iowa 1991). Extended absences from work would interfere with a wide range of jobs. See Falczynski v. Amoco Oil Co., 533 N.W.2d 226, 232 (Iowa 1995). A disability which caused repeated extended absences from work could not be fairly described as one which disqualified an individual from "one particular job for one particular employer." Probasco v. Iowa Civil Rights Comm., 420 N.W.2d 432, 436 (Iowa 1988). It is "substantially limiting within our statute." Id. Even where there is no prior history of cancer, an employee who is terminated because his genetic profile indicates an increased susceptibility to cancer would be regarded as having a substantially limiting impairment. Cf. EEOC Compliance Manual, Volume 2, EEOC Order 915.002, Section 902.8 (emphasis added)(as printed in BNA, Fair Employment Practice Manual 405:7280 (1995)(applicant denied position due to such profile). The perception by the Respondents that Complainant Martin was at risk for future cancer which would cause extended repeated absences from work demonstrates that Complainant Martin is a "substantially handicapped person." 161 IAC 8.26(1).
2. The Combination of the Hospitalization and Extensive Treatment
Undergone by Complainant Martin, and the Beliefs Held About Her
Treatment and Condition by the Respondents Support the Finding
That She Was Perceived As Being Disabled and, Therefore, Had a
Substantial Handicap:
47. The evidence of Martin's hospitalization and treatment, of the Respondents' awareness of that treatment, and of the Respondent's beliefs concerning that treatment and her condition all support the conclusion that she was perceived as being substantially handicapped. In the Arline case, the United States Supreme Court found that the plaintiff's tuberculosis "was serious enough to require hospitalization, a fact more than sufficient to establish that one or more of her major life activities were substantially limited by her treatment." School Board of Nassau County v. Arline, 480 U.S. 273, 317 (1987). The record here establishes not only hospitalization of the Complainant, but also extensive radiation treatment, both of which were known by Respondents. The record also establishes a belief by Respondent McIvor that she had undergone chemotherapy, and a concern that her speaking would be impaired after the treatment was concluded. In addition McIvor suggested she check out disability insurance. See Conclusion of Law No. 42. This evidence is sufficient to show that complainant was perceived as being disabled. 161 IAC SS 8.26(1), (5)(c). She was a substantially handicapped person, see Iowa Code S 601A.2(4)(1991)("substantial handicap"); 161 IAC S 8.26(1)("'substantially handicapped person' shall mean any person . . . regarded as having such impairment"), and "disabled" for the purposes of the Act. See Frank v. American Freight Systems, Inc., 398 N.W.2d 797, 800 (Iowa 1987)