DWIGHT ROBERTS, Complainant,

VS.

IOWA BEEF PROCESSORS, INC., Respondent.

CONCLUSIONS OF LAW

1. Complaint CP#10-82-9137, was timely filed, processed and the issues in the complaint are properly before the Administrative Law Judge and ultimately, before the Commission.

2. The applicable statutory authority is Iowa Code section 601A.2(11) (1981) in which disability is defined as:

... the physical or mental condition of a person which constitutes a substantial handicap. In reference to employment under this chapter, "disability" also means the physical or mental condition of a person which constitutes a substantial handicap but is unrelated to such person's ability to engage in a particular occupation.

3. Iowa Code 601A.6(l)(1981), provides that it is an unfair or discriminatory practice for any:

a. Person to refuse to hire, accept, register, classify, or refer for employment ... because of the ... disability of such applicant ... unless based upon the nature of the occupation. If a disabled person is qualified to perform the particular occupation, by reason of training or experience, the nature of that occupation shall not be the basis for exception to the unfair or discriminatory practices prohibited by this subsection.

4. The statutory provision of Chapter 601A has been broadened under the rule-making process to include "perceived" disability. 240 Iowa Administrative Code 6.1 provides:

6. l(l) 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 an impairment, or is regarded as having such an impairment.

5. Roberts does not claim to be substantially handicapped.

It is agreed that the restrictions placed on Roberts because of his pacemaker, i.e., stay away from microwaves and no contact sports, and a 80# lifting restriction do not constitute a substantial handicap. Therefore, 240 Iowa Admin. Code 6. 1(5) is the appropriate rule to consider:

The term "is regarded as having an impairment" means:

a. Has a physical or mental impairment that does not substantially limit major fife 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 the 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 impairment.

6. Roberts alleged that he had a physical impairment but that the impairment did not substantially limit his major life activities. He further alleged that IBP perceived the impairment as constituting such a limitation. Such perception would place him in the protected class of disabled. It is agreed that Roberts has a physical impairment that does not substantially limit his major fife activities. Did IBP/TASCO perceive that Roberts' pacemaker constituted a substantial handicap? If so, was that perception the reason IBP/TASCO did not hire Roberts?

7. It is important to distinguish between *Perceiving" someone to be disabled who is not disabled and identifying an applicant who is not qualified to do a job. Should the Commission require an employer to sift through 2000 application forms, pull out all those that indicate an impairment or record of impairment, and require that these persons be hired whether or not they are the best qualified? Such a requirement would not only be unreasonable but would wreak havoc in the employment system. Even if there were only five applicants, the employer has the right to him the most qualified applicant. What the employer does not have the right to do is refuse to hire someone because they are disabled as defined by the law.

8. Which persons was the disability law meant to protect? Both the statutory definition and statutory provision for employment make a distinction when the disability is related to the job. If, for example, someone with an artificial leg applies for a job that requires no use of that leg and an employer refuses to hire the person because of the artificial leg, the employer has committed a discriminatory act. If the same person applied for a job which included considerable walking, then the disability is related to the job. In that case, there is an additional consideration: has the applicant, through experience or training, overcome the handicap to the extent that the applicant can perform the essential functions, including "considerable walking," of the job? The employer cannot assume, i.e., perceive, that the artificial leg will make the applicant unqualified. However, when the employer knows the handicapped person is qualified to do the job, the employer still does not have to hire that applicant. The employer can hire the most qualified applicant. The only thing an employer cannot do is to refuse to hire the applicant because the applicant has an artificial leg.

9. There has been an attempt in the past two sessions of the Iowa legislature to pass a bill which would require employers to reasonably accommodate an applicant in order to qualify that applicant for the job. During the first session, such a bill passed and was vetoed by the Governor. During the second session, the bill failed to pass. The Commission has neither the statutory authority or authority under its rules to require employers to accommodate, reasonable or not, applicants who have disabilities directly related to the job and who are not qualified to do the essential tasks of that job.

9. The Iowa Supreme Court set forth what they believed to be consistent with the civil rights statute and their holding in Probasco v. Hy-Vee 420 N.W.2d 433 (Iowa 1988), as they cite Forsi v. Bower, 794 F.2d 931, 934 (4th Cir. 1986), where the court said such legislation:

assures that truly disabled, but genuinely capable, individuals will not face discrimination in employment because of stereotypes about the insurmountability of their handicaps. It would debase this high purpose if the statutory protections available to those truly handicapped could be claimed by anyone whose disability was minor and whose relative severity of impairment was widely shared. Indeed, the very concept of an impairment implies a characteristic that is not commonplace and that poses for the particular individual a more general disadvantage in his or her search for satisfactory employment.

10. The burden of proving that he was qualified for the construction work was on Roberts. He had no experience in construction. The record of experience he provided TASCO was that he had taken a course in woodworking. Assuming arguendo, that experience in construction was not necessary or that TASCO hired other applicants who only had a course in high school woodworking, Roberts must then prove that TASCO perceived that his pacemaker constituted a substantial handicap. ONLY IF he is "perceived" to be substantially handicapped does he become a member of the protected class. Roberts has not proved that IBP perceived him as being substantially handicapped.

11. The very real problem of grouping the substantially handicapped (handicap is either not directly related to the work or is directly related but through experience and training the handicapped person has overcome the handicap) with those who have an impairment which is directly related to work and imposes restrictions on their ability to do all of the required tasks of the work, is that such a grouping dissipates the opportunities for the truly disabled who have become qualified in spite of their substantial handicap in order to become integrated into the marketplace.

12. Perceiving someone to be disabled and concluding they are not able to do the work when in fact they are substantially handicapped but can do the work, would be unfair and discriminatory. Perceiving someone to be impaired as related to the work and concluding they are not able to do the work when in fact they are not able to do the work is not unfair or discriminatory. The Civil Rights Act does not require an employer to hire someone who is not qualified to do the job, not because of their race, their sex, their national origin, their religion or their disability. The law is clear that an employer cannot refuse to hire a qualified disabled person because of the disability or the need to reasonably accommodate that disability. Furthermore, an employer can select the most qualified person from a pool of applicants unless there is an in-place affirmative action program to preferentially hire protected classes.

"Reasonable accommodation" to the truly handicapped is the secondary requirement in disability law. The first requirement is the same as for any other protected class, i.e., equal treatment. Equal treatment means the protected characteristic is not a consideration in hiring when screening applicants for a job. Race, sex, religion, etc. or "disability" cannot be the reason for failure to hire. Qualifications to do the job must be the screening basis. However, to have the singular requirement of equal treatment in the case of the disabled would still allow barriers over which the disabled could not climb. Therefore, reasonable accommodation is essential to overcome obstacles unique to the handicapped which limit opportunities in employment. Such obstacles are the prejudices and attitudes of employers, inaccessibility of information, lack of adequate transportation, and architectural barriers.

Access accommodation must be considered, i.e., installation of ramps, elevators, braille numbers on elevators. The starting point of competition for a job must be the job itself and not getting to the job. The second kind of accommodation which is required is modification of the employment setting. Reassigning nonessential tasks, modifying space and equipment and flexible work schedules. 27 DePaul L. Rev. 953 The law does not require that the job itself be changed . The law is clear that the protected person is one who is "qualified to perform the particular occupation."

Roberts had an impairment with a restriction winch was directly related to the job requirements of construction worker. Roberts did not believe that he was substantially handicapped. He did believe, however, that TASCO/IBP perceived him to be substantially handicapped. If so perceived, he would be a member of the protected class of disabled. It is concluded that IBP did not perceive Roberts as handicapped under the law. His lifting restriction was the factor in his failure to be hired for the construction job. No evidence was presented of jobs that he could do in construction which did not require the lifting. Roberts was not one of the most qualified applicants. Roberts was qualified for the security position. His impairment, perceived or not, was not the reason he was not hired for that position. The reason was that there was no opening. Roberts did not present evidence that there was, in fact, a job opening in security and that he was more qualified than other applicants. Roberts has failed to carry his burden of proof that IBP discriminated against him and this case should be dismissed.