BEFORE THE IOWA CIVIL RIGHTS COMMISSION

STACEY D. DAVIES, Complainant, and IOWA CIVIL RIGHTS COMMISSION,

vs.

NISSEN COMPANY, SUBHASH SAHAI, M.D., and WEBSTER CITY MEDICAL CLINIC, INC., Respondents.

FINDINGS OF FACT:

I. JURISDICTIONAL AND PROCEDURAL FACTS:

A. Subject Matter Jurisdiction:

1. Complainant Davies alleges Respondents were responsible for the failure to hire her for a full-time production (line) position at the Nissen Company because of her sex, i.e. because she was pregnant. (Notice of Hearing- Complaint and amendment). This allegation brings her complaint within the subject matter jurisdiction of the Commission. See Conclusions of Law No. 2.

B. Procedural Matters:

2. Complainant Stacey Davies filed her original complaint in October of 1989 against the Nissen Company. This complaint alleged sex discrimination in employment which is prohibited by Iowa Code section 601A.6 (now 216.6). The date of the alleged discriminatory failure to hire her because of her pregnancy is September 8, 1989. Thus, the original complaint was filed less than one hundred eighty days after the alleged act of discrimination. This complaint was subsequently amended on February 15, 1990 to name Subhash Sahai, M.D. and Webster City Medical Clinic, Inc. as Respondents.

3. The complaint was investigated. After probable cause of race discrimination was found, conciliation was attempted and failed. Notice of Hearing was issued on August 18, 1991. (Notice of Hearing).

C. No Appearance By Counsel or Party With Respect to the Nissen Company:

4. The Respondent Nissen Company was neither present at the hearing nor represented by counsel. It's counsel had withdrawn their appearance on behalf of the company because it "is without employees, funds or other resources with which to continue to defend the claim . . . against it." (Withdrawal of Appearance). There has been no motion to withdraw or dismiss the charges against Nissen Company. Therefore, it is treated as an active party in this case.

II. BACKGROUND:

5. Respondent Nissen Company is a meat-packing facility. (Tr. at 100). There is no kill floor at this facility. The primary work there was to pack some of the smaller processed meat products, including wieners or franks. (Tr. at 118-19, 133).

6. Complainant Davies, a female, applied for work with Respondent Nissen Company by filling out a standard Job Service of Iowa application on July 14, 1989. (CP. EX. # 1; Tr. at 7-8). She was screened by the Job Service office in Fort Dodge, where she took a standardized GATB test battery. (Tr. at 8). She was subsequently called for an interview with Kenneth Hakes, vice-president of production with Nissen. (Tr. at 8-9, 71).

7. Mr. Hakes interviewed Complainant Davies on September 8, 1989 for a position on the production line. (Tr. at 9-10, 73). Hakes determined that Davies was qualified and asked her if she wanted the job. She indicated she did. He then informed her, in accordance with Respondent Nissen's standard procedure, that she would have to have a medical physical examination and drug test at Respondent Clinic. (Tr. at 10-11, 73). Respondent Nissen made arrangements for Complainant Davies's examination at the Clinic. (Tr. at 11). Davies was examined at Respondent Clinic on the same day, immediately after leaving the interview with Mr. Hakes's office. (R. EX. A; CP. EX. # 2; Tr. at 12). She understood she would have to successfully complete and pass this physical in order to be hired by Respondent Nissen. Any offer of employment was clearly conditioned on successfully passing the exam. (R. EX. B at p. 65; Tr. at 36-37). Complainant Davies was never hired by Nissen. See Finding of Fact No. 16. She was approximately one and one-half months pregnant at this time. (Tr. at 11).

7A. When Complainant Davies arrived at the Clinic, she initially met with Dr. Schultz. She informed Dr. Schultz that she was pregnant and that Dr. Sahai had been her doctor when she had been pregnant with her first child. Dr. Schultz then suggested that Dr. Sahai should see her. Dr. Sahai came in and asked if she was pregnant and Ms. Davies responded in the affirmative. During the course of the examination, Respondent Sahai measured Complainant Davies' stomach and listened to the fetal heartbeat. They also discussed her pregnancy. (Tr. at 12-13).

8. Respondent Clinic is a corporation with a staff of six physicians. Respondent Dr. Subhash Sahai is associated in the practice of medicine with the Clinic and is president of that corporation. (CP. EX. # 6 at p.3; Tr. at 95-96, 99-100). Respondent Dr. Sahai is a certified family practice specialist. (Tr. at 98).

9. Respondent Clinic had an oral agreement with Respondent Nissen Corporation whereby the Clinic agreed to do applicant employment physical examinations, drug testing, and to provide medical care for injured employees for Nissen. (CP. EX. # 6 at p. 4-5; Tr. at 100-01, 125-26). The Clinic was paid by Nissen on a per applicant basis. (Tr. at 125, 128-29). This arrangement was in effect for approximately ten years. (Tr. at 100).

10. Respondent Nissen interviewed applicants and preliminarily determined those whom it wished to hire. It would then send those applicants only to Respondent Clinic for their physical examination. The final decision to hire, however, was wholly contingent on passing the physical examination. (Tr. at 36-37, 127-28). Dr. Sahai's final recommendation could not be overridden by those at the Nissen plant. During the course of the investigation, Vice- President Hakes went so far as to say that Dr. Sahai made the final decision on hiring at Nissen. (Tr. at 75-77). At one point in the testimony Dr. Sahai suggested that Nissen overruled him with respect to Sahai's recommendation to not hire a chemist. (Tr. at 102-03). However, his deposition testimony clearly indicates that, after Nissen requested the grounds for his decision, he obtained further information on the chemist's duties. He then approved the hire of the chemist. (C. EX. 6 at p. 17-18).

11. Respondent Clinic was also employed by five other companies for similar services. (CP. EX. # 6 at p. 6; Tr. at 101, 126). The doctors visit with the companies' administrations and their plants in order to ascertain what is entailed in the different kinds of work done by employees. (Tr. at 101). This is done so the doctors will have firsthand knowledge of working conditions which they rely on when making recommendations for employment after administering the physical examinations to applicants. (Tr. at 101-02). Respondent Sahai visited Nissen three or four times in order to familiarize himself with the plant and the work done there. (Tr. at 101).

12. With respect to the examination of Nissen's job applicants, Dr. Sahai contacted Nissen and verbally informed them as to whether the applicant was recommended for employment. He would also send Nissen a standard form which would indicate with a "yes" or "no" whether the applicant was recommended for hire. (R. EX. A; CP. EX. # 2, 6 at p. 15- 16). Respondent Sahai would often not inform Nissen Company of the specific reason that applicants would be rejected. (CP. EX. # 6 at p. 16-17).

13. Respondent Clinic clearly is in the business of providing services for Nissen Company and other employers. Those services include classifying applicants for hire as being fit or unfit for employment, based on physical examinations and the knowledge and judgment of the doctor, and either referring them to the employer for employment or recommending that they not be employed. (Tr. at 126-28). See Findings of Fact Nos. 8-12.

14. Respondent Nissen and Respondent Clinic agreed that the Clinic would act for the benefit of Nissen in the undertaking of examining applicants and determining whether the applicants would be finally selected for employment or rejected. See Findings of Fact Nos. 9-10. Nissen controlled the undertaking in the sense that (a) it alone determined which applicants it sent to Respondent Clinic and (b) the purpose of the relationship was to ascertain if applicants were fit for work at Nissen. See Findings of Fact Nos. 10-13. Respondent Nissen did not, however, control the doctors' professional judgment, recommendations, examination methods or criteria, or physical conduct. (Tr. at 126). With respect to these matters, Nissen relied on the doctors', specifically Dr. Sahai's, professional expertise. (CP. EX. # 6 at p. 13-14; Tr. at 126-27). For reasons set forth in the conclusions of law, these facts are sufficient to show that Respondent Clinic was an agent of Respondent Nissen. See Conclusions of Law Nos. 14-22.

III. DIRECT EVIDENCE THAT RESPONDENTS DID NOT HIRE COMPLAINANT DAVIES OR REFER HER FOR HIRE FOR THE PRODUCTION LINE POSITION BECAUSE OF HER PREGNANCY:

15. There is massive credible direct evidence in the record indicating that Respondents Sahai and Clinic refused to recommend Complainant Davies for hire for production line work because of her pregnancy and that Respondent Nissen Company followed this recommendation. After Dr. Sahai examined Ms. Davies, he informed her that he was going to recommend that Respondent Nissen Company not hire her. (Tr. at 13, 109-110). He then had a telephone conversation with Mr. Hakes at Nissen Company. Respondent Sahai admitted, on deposition, that he told Mr. Hakes "I do not think that you should hire a new employee to be doing assembly type of work who's pregnant." (CP. EX. # 6 at p. 36). Sahai's deposition testimony is consistent with his credible testimony at hearing on this issue. (Tr. at 72-73, 110). Respondent Sahai went on to ask Hakes if other suitable employment was available for complainant and was informed there was not. (Tr. at 111).

16. Respondent Sahai then told Complainant Davies that he was going to recommend she not be hired for the assembly line position because of complications in her first pregnancy. (R. Ex. B at p. 67; C at 3, 5; Tr. at 15-16). These complications consisted of pain in her right side. (Tr. at 16). Dr. Sahai also told Ms. Davies that she could call Nissen Company on Monday, but he didn't think she would be hired. (Tr. at 13). On the following Monday, Complainant Davies telephoned Respondent Nissen Company and was informed by a person named Georgeann that she was not being hired "because of your pregnancy." (R. EX. B at p. 70; Tr. at 16- 17).

17. During the hearing, Respondent Sahai also credibly admitted he had a policy of not hiring pregnant women for assembly [or production] line work at Nissen Company:

Q. [By Baustian]: . . . In fact, you do have a blanket policy for permitting pregnant women to work on the assembly line, do you not?

A. [By Sahai]: Well, you're correct. For the assembly line, yes, there is. If you want to call that a blanket policy, yes, I'll give in to that.

Q. [By Baustian]: It's your policy not to permit pregnant women to work on the assembly line for Nissen Company. That is your policy, isn't that correct?

A. [By Sahai]: That's not correct. The policy is not to newly hire women who are pregnant for assembly line work.

Q. [By Baustian]: So, in essence, though when you are approving people for their pre-employment physical, that would be a newly hired person?

A. [By Sahai]: That's correct.

Q. [By Baustian]: You would not approve someone for hire on the assembly line who is pregnant?

A. [By Sahai]: That's correct.

Q. [By Baustian]: And the sole reason for that is the pregnancy, isn't that right, Doctor?

A. [By Sahai]: And assembly line work.

(Tr. at 124-25)(emphasis added).

18. With respect to Ms. Davies, Respondent Sahai credibly admitted, at hearing, that he chose to recommend against her employment because of his policy of not permitting newly-hired pregnant women in assembly line positions. (Tr. at 130-31). At his deposition, Respondent Sahai admitted: "My basis of recommendation [to not hire Complainant Davies] was two-fold: Number 1, that she was going to be doing assembly line work and Number 2, she was pregnant at the time." (CP. EX. # 6 at p. 22). "That I [Dr. Sahai] would not let any pregnant woman go to work on assembly line work. I know that for a fact." (CP. EX. # 6 at 25).

19. The physical examination notes, dated September 8, 1989, which were retained by Dr. Sahai and not sent on to Nissen, state: "Refused work if preg. on assembly line." (R. EX. A; CP. EX. # 6 at p. 14-15; Tr. at 113). The Physical Examination Record of that date filled out by Dr. Sahai and sent to Respondent Nissen Company has a checkmark by the "No" response to the question: "Approved for work?". (R. EX. A; CP. EX. # 2; 6 at p. 14-15; Tr. at 113).

20. During the course of the investigation, Respondent Nissen Company's vice-president Hakes admitted Complainant Davies was not hired because of Respondent Sahai's recommendation that she not be hired due to her pregnancy. (Tr. at 72-73).