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.

RULINGS ON OBJECTIONS:

A. Objections to Complainant's Exhibit # 3:

1. Respondents Sahai and Webster City Medical Clinic, Inc. (hereinafter referred to as "Clinic") objected to the admission of Complainant's Exhibit # 3 on the grounds of relevancy and materiality. (Tr. at 20). Complainant's Exhibit # 3 is the record of the medical history and physical performed by Dr. Birkett, complainant's physician, on or about October 23, 1989. (CP. EX. # 3; Tr. at 18, 52). This exhibit is relevant as it tends to "make the existence of [a] fact of consequence to the determination of the [contested case][i.e. the physical condition of the complainant with respect to her ability to work] more or less probable than it would be without the evidence." Iowa R. Evid. 401 (definition of relevant evidence). The exhibit is also material as it is pertinent to the issue of Complainant Davies's ability to work. BLACK'S LAW DICTIONARY 881 (5th ed. 1979)(citing Vine Street Corp. v. City of Council Bluffs, Iowa, 220 N.W.2d 860, 863 (definition of "material evidence"). The objection is overruled.

B. Objections to Complainant's Exhibit # 4:

2. Respondents Sahai and Clinic objected to the admission of Complainant's Exhibit # 4 on the grounds of relevancy and materiality. (Tr. at 27). Complainant's Exhibit # 4 is the bargaining agreement between the Nissen Company and the United Food and Commercial Workers of North America. It was offered solely for the purpose of assisting in the determination of back pay as wage rates are set forth within it. (Tr. at 27). The exhibit is relevant and material for that purpose. The objection is overruled.

3. Respondents Sahai and Clinic objected to the admission of Complainant's Exhibit # 5 on the grounds of relevancy and materiality. (Tr. at 94). Complainant's Exhibit # 5 is a record of a telephone communication from Nissen Corporation's attorney to the Commission indicating the back pay of the person hired for the position for which the Complainant applied. It was offered solely for the purpose of assisting in the determination of back pay. (Tr. at 94). The exhibit is relevant and material for that purpose. The objection is overruled.

4. The Commission objected to questions asked by Respondents Sahai and Clinic concerning Complainant Davies's arrests for two crimes, possession of a weapon and auto theft, for which she was never convicted, on grounds of relevancy. (Tr. at 47-50). The reason offered by Respondents for asking these questions is that this information would be sought by potential employers and would affect her employability in such a manner as to make it difficult for her to mitigate damages. However, the record shows that Complainant Davies was never asked about arrests or any criminal record by potential employers. (Tr. at 46).

5. It is certainly within the specialized knowledge of this Commission that such questions, at least with respect to arrest records, are now rarely asked by employers. Official notice is taken of this fact. Fairness to the parties does not require that they be given the opportunity to contest this fact. See Iowa Code S 17A.14(4). The reason such questions are now rarely asked is because it is well recognized that such questions are often found to be racially discriminatory and illegal. See e.g. Schlei & Grossman, Employment Discrimination Law 175 (1983). The objection is sustained.

6. Even if the Commission's objection had been overruled, the information solicited would be entitled to no weight for three reasons. First, the evidence shows that no employer ever made such inquiry of complainant. (Tr. at 46). Second, there is no evidence as to when these arrests occurred. Complainant Davies can hardly be said to have "unreasonab[ly] fail[ed] to seek employment", Children's Home of Cedar Rapids v. Cedar Rapids Civil Rights Commission, 464 N.W.2d 478, 482 (Iowa Ct. App. 1990), as part of her mitigation of damages, based on events occurring before the rejection. Third, as the United States Supreme Court has noted, "The mere fact that a [wo]man has been arrested has very little, if any, probative value in showing that [s]he has engaged in any misconduct. An arrest shows nothing more than that someone probably suspected the person apprehended of an offense." Id. at n.61 (quoting Schware v. Board of Bar Examiners, 353 U.S. 232, 241 (1957)).