SHERRY WILLIAMS, Complainant,

VS.

HISKEY APARTMENTS and EUGENE HISKEY, Respondents.

CONCLUSIONS OF LAW

1. The complaint was timely filed, processed and the issues in the complaint are properly before the Hearing Officer and ultimately before the Commission.

2. Hiskey Apartments and Eugene Hiskey, are "employers" and "persons" as defined in Iowa Code section 601A.2(2) and (5)(1983), and are therefore subject to Iowa Code section 601A.6 and do not fall under any of the exceptions of section 601A.6(5).

3. The applicable statutory provision is as follows:

1. It shall be an unfair or discriminatory practice for any:

a. Person to refuse to hire, accept, register, classify, or refer for employment .... or to otherwise discriminate in employment against any applicant for employment... because of the ... sex ... of such applicant ... unless based upon the nature of the occupation...

* * *

c. Employer, employment agency, labor organization, or the employees, agents or members thereof to directly or indirectly advertise or in any other manner indicate or publicize that individuals of any particular ... sex, ... are unwelcome, objectionable, not acceptable, or not solicited for employment ... unless based on the nature of the occupation.

4. The Commission rules provide as follows:

240-3.2(601A) Sex as a bona fide occupational qualification. The bona fide occupational qualification exception as to sex is strictly and narrowly construed. Labels - "men's jobs" and "women's jobs" tend to deny employment opportunities unnecessarily to one sex or the other.

240-3.3(601A) Recruitment and advertising.

3.3(l) Employers engaged in recruiting activity must recruit employees of both sexes for all jobs unless sex is a bona Fide occupational qualification.

240-3.6(601A) Job policies and practices.

3.6(l) Written personnel policies relating to this subject area must expressly indicate that there shall be no discrimination against employees on account of sex...

3.6(2) Employees of both sexes shall have an equal opportunity to any available job that he or she is qualified to perform, unless sex is a bona fide occupational qualification.

5. Respondent does not claim that sex is a bona fide occupational qualification for the General Manager position. Respondent claims that female and male applicants were treated the same. The United States Supreme Court set out the basic allocation of burden and order of presentation of proof in a case alleging discriminatory treatment in McDonnell Douglas Corp. v. Green , 411 U.S. 792 (1973). In Texas Department of Community Affairs v. Burdine, 450 U.S. 248,256, 101 S.Ct. 1089, 1093, 67 L.Ed. 2d 207,215 (1981), the Court summarized that burden and order from McDonnell as follows:

First, the plaintiff has the burden of proving by the preponderance of the evidence a prima facie case of discrimination. Second, if the plaintiff succeeds in proving a prima facie case, the burden shifts to the defendant "to articulate some legitimate, nondiscriminatory reason for the employee's rejection." Id. at 802. 5 FEP Cases, at 969. Third, should the defendant carry this burden, the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination. Id. at-804, 5 FEP Cases at 907.

This basic allocation of burdens and order of presentation of proof was adopted by the Iowa Supreme Court in Linn Cooperative Oil Co. v. Quigley, 305 N.W.2d 729, 733 (Iowa 1981).

6. The complainant carries the initial burden of offering evidence adequate to create an inference that actions by a respondent were based on a discriminatory criterion which is illegal under the law. International Brotherhood of Teamsters v. United States, 431 U.S. 324, 358, 97 S.Ct. 1843 (1977). In evaluating the evidence to determine whether the complainant has succeeded in establishing that inference, which is referred to as a *prima facie" case, the Commission and the Iowa Court have relied on McDonnell Douglas. The criteria established in McDonnell Douglas, however, were specific to a qualified applicant of a protected class who applied for a job and was rejected despite the qualification. Since then the Supreme Court has made it clear that the McDonnell Douglas criteria were to be neither "rigid, mechanized, or ritualistic. - Furnco Const. Corp. v. Waters, 438 U.S. 567, 98 S.Ct. 2943 (1978). Courts have been flexible in adopting the criteria to other types of cases.

7. In the case at issue, a prima facie case of sex discrimination may be shown through analogy if Complainant can establish the following:

a. that she is a member of a protected class;
b. that she attempted to apply for a job which was available;
c. that she was precluded from applying for that job;
d. that after being denied the opportunity to apply, the position remained available to persons who were not in the same protected class.

Williams, a female, is a member of a protected class; she attempted to apply for a job which was available; she was precluded from applying for that job; and, after being denied the opportunity to apply the position remained available to persons who were not in the same protected class. A prima facie case of discrimination has, therefore, been established. To establish a prima facie case of failure to hire, the elements would be: membership in a protected class; application for a job for which she was qualified and for which the employer was seeking applicants; despite qualifications, she was rejected; and after rejection, the position remained open and the employer continued to seek applicants with similar qualifications.

The issue to be resolved in this situation is not the issue of Complainant's qualifications since she never reached the interview stage. It was established in Nanty v. Barrows, Co., 660 F.2d 1327,1332 (9th Cir. 1981), that proof of qualification under such circumstances is not required. The court stated:

... although Nanty was a legitimate candidate for a position the employer was seeking to fill, Barrows rejected him at a time when it had no knowledge of, and no way of evaluating, his qualifications. Therefore, neither "an absolute or relative lack of qualification"...was the reason for Nanty's rejection, and Nanty established his Prima facie case.

When an employer summarily rejects an applicant without considering the qualifications of that applicant, those qualifications are irrelevant to whether the complainant has raised a prima facie case of disparate treatment. See EEOC v. Ford Motor Co., 645 F.2d 183, 188 n.3, 198-199(4th Cir. 1981). In the case at issue, it is concluded that Williams has established a prima facie case of failure to hire based on the same reasoning. The evidence, in any case, does indicate Williams was qualified.

9. The burden of persuasion remains with the Complainant, however, a prima facie case creates a "presumption" of discrimination which, if believed will require a finding of discrimination. Burdine, 450 U.S. 248, 101 S.Ct. 1089. If the employer desires to dispel this presumption, evidence must be produced showing "some legitimate, nondiscriminatory reason" for the challenged action. McDonnell Douglas, 411 U.S. at 803, 93 S.Ct. at 1824, 36 L. at 668. The employer need not Persuade the trier of fact that it was action motivated by the proffered reason.

It is sufficient if the defendant's evidence raises a genuine issue of fact as to whether it discriminated against the plaintiff. To accomplish this, the defendant must clearly set forth, through the introduction of admissible evidence, the reasons for the plaintiff's rejection. The explanation provided must be legally sufficient to justify a judgment for the defendant. [footnotes omitted]

Burdine, 450 U.S. at 254, 101 S.Ct. 1094.

10. Respondent denies a policy of not hiring women as general managers. He stated that he has, in fact had two women in that position. He stated further that he did not request his personnel who took the phone calls in response to the ad to preclude women from scheduling interviews. Hiskey's regular employee, Steinberg, denies refusing to schedule women for interviews but did not remember scheduling any for interviews. Hiskey's other employee, Beers, who helped out just for the day interviews were being scheduled stated that she did, in fact, schedule at least two women for interviews. Hiskey affirms that testimony, in that he did interview one woman and that one woman did not appear for her interview. Both deny having told Williams that a man was wanted for the position.

11. The Complainant retains the burden of persuasion. She can prevail in her ultimate burden of proof by showing that Respondent's articulated reasons are pretextual or unworthy of credence. Burdine, 101 S.Ct. at 1095, McDonnell-Douglas, 411 U.S. at 804.

12. Both Steinberg and Beers agreed on the procedure which was followed in answering calls in response to the ad. If someone called and expressed an interest in the job, their name was placed on the interview schedule. This was done as the calls came in until the interview slots were filled. Complainant's name was not on the interview schedule. She called in just a few minutes after 10:00 A.M., the time given in the ad as the first time to call. The ad did not identify Hiskey Apartments as the employer. Two things could have occurred: 1) Williams did not call, or 2) Williams called and the person answering the phone did not schedule her for an interview. Why would Williams say she called if she didn't call? She was out of a job. The ad described a job for winch she was interested and experienced. She could not have known the employer was Hiskey Apartments unless she called the number given in the ad. in her note written at 10:05 A.M. on June 13, 1983, she wrote "Hiskey Apt's" At 10:09 A.M., she called the Commission to set up an appointment for filing a complaint and on June 15, 1985, she provided the name and number of Hiskey Apartments to the Commission Intake Personnel.

The evidence is clear that there was an ad for a general manager in the June 12, 1983 Des Moines Register; that Eugene Hiskey placed that ad; that phone call applications were received starting at 10:00 A.M. on June 13; that interviews were set up for the 14th and 15th; that William called her mother immediately after the call to the number in the ad; that Williams proceeded then to file a complaint based on sex discrimination; and that she then submitted her resume with a letter requesting an interview. None of this is disputed. The only dispute is whether or not Steinberg or Beers, acting in behalf of Respondent, precluded Williams from scheduling an interview. It is not reasonable that Williams would fabricate the phone call in order to file a complaint against someone whom she didn't even know. It is reasonable to believe from the testimony that Beers assumed a male was preferred or that a female, particularly an older female, would not be capable of doing the job.

It is concluded that Respondent, through his agent, intentionally denied Complainant the opportunity for an interview for the position of general manager because she is a female.

13. Iowa rule is that at common law the master and servant may each and both be liable for a servant's tort committed in the course of employment, with master ordinarily having the right of recourse against the agent in event the master is held liable for negligence of the agent. Graham v. Worthington, 146 N.W.2d 626, 259 Iowa 845 (1966); see also, Sandman v. Hagan, 154 N.W.2d 113, 261 Iowa 560 (1967); Wiedenfeld v. Chicago & N.W.Transp. Co., 252 N.W.2d 691 (1977). To impose liability on an alleged master of person committing a tort, control over such person should be of such character as to enable the master to direct the manner of performing the services and to prescribe what particular acts shall be done in order to accomplish the end intended. Crum v. Walker, 44 N.W.2d 701, 241 Iowa 1173 (1950). A significant factor in control as an element of employer-employee relationship is the power of one for whom services are rendered to terminate the relationship without cause or at short notice. The fact that services are rendered by part-time work does not rebut inference of permanency so long as the services rendered are reasonably and regularly recurrent. Tapager v. Birmingham 75 F.Supp. 375(1948). If the employee is acting on the scope of the employment, the employer will be held liable. Jones v. Blair, 387 N.W.2d 349 (1986). In the case at issue, the employer requested the employee to come in and assist the regular employee in answering the phone calls which were anticipated in response to the ad. She used his office and his phone. She scheduled appointments for Ins interviews and she was familiar with the office routine and procedures as a prior full time employee. Respondent had the right of control and the right to direct the means and manner of doing the work of the persons answering the phone on June 13, 1983. Hiskey may not have authorized his employees to screen women out, however, an employer may be held accountable for the acts of his employees acting within the scope of that employment even though the employer had no knowledge of the act or would have disapproved of the acts. 53 Am.Jur.2d Master and Servant, §435, at 453 (1970); see Herring Motor Co. v. Myerly, 207 Iowa 990, 992, 222 N.W.2d (1928). It is concluded that Beers and Steinberg were acting in the scope of their employment with Hiskey and that he should be held liable for any act of denying Williams the opportunity of interviewing for the position of general manager and the failure to hire Williams for that position.