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.

CONCLUSIONS OF LAW:

VI. Order and Allocation of Proof Where Complainant Relies on Direct Evidence of Discrimination:

23. "Direct evidence" is that "evidence, which if believed, proves existence of [the] fact in issue without inference or presumption." It is "that means of proof which tends to show the existence of a fact in question, without the intervention of the proof of any other fact, and is distinguished from circumstantial evidence, which is often called "indirect". BLACK'S LAW DICTIONARY 413-14 (1979). Either policies which on their face call for consideration of a prohibited factor or statements by relevant managers reflecting bias constitute direct evidence of discrimination. Schlei & Grossman, Employment Discrimination Law: Five Year Cumulative Supplement 477-78 (2nd ed. 1989).

24. The proper analytical approach in a case with direct evidence of discrimination is, first, to note the presence of such evidence; second, to make the finding, if the evidence is sufficiently probative, that the challenged practice discriminates against the complainant because of the prohibited basis; third, to consider any affirmative defenses of the respondent; and, fourth, to then conclude whether or not illegal discrimination has occurred. See Trans World Airlines v. Thurston, 469 U.S. 111, 121-22, 124-25, 105 S. Ct. 613, 83 L.Ed. 2d 523, 533, 535 (1985)(Age Discrimination in Employment Act). With the presence of such direct evidence, the analytical framework, involving shifting burdens of production, which was originally set forth in McDonnell Douglas Corp. v. Green 411 U.S. 792, 93 S. Ct. 1817, 36 L.Ed. 2d 207 (1973), and subsequently adopted by the Iowa Supreme Court, e.g. Iowa State Fairgrounds Security v. Iowa Civil Rights Commission, 322 N.W.2d 293, 296 (Iowa 1982); Consolidated Freightways v. Cedar Rapids Civil Rights Commission, 366 N.W.2d 522, 530 (Iowa 1985), is inapplicable. Landals v. Rolfes Co., 454 N.W.2d 891, 893-94 (Iowa 1990); Price-Waterhouse v. Hopkins, 490 U.S. 228, 109 S. Ct. 1775, 104 L. Ed. 2d 268, 301 (1989)(O'Connor, J. concurring); Trans World Airlines v. Thurston, 469 U.S. 111, 121, 124-25, 105 S. Ct. 613, 83 L.Ed. 2d 523, 533 (1985); Schlei & Grossman, Employment Discrimination Law: Five Year Cumulative Supplement 473, 476 (2nd ed. 1989).

25. The reason why the McDonnell Douglas order and allocation of proof is not applicable where there is direct evidence of discrimination, and why the employer's defenses are then treated as affirmative defenses, i.e. the employer has a burden of persuasion and not just of production, is because:

Price-Waterhouse v. Hopkins, 490 U.S. 228, 109 S. Ct. 1775, 104 L. Ed. 2d 268, 301 (1989)(O'Connor, J. concurring). See also Landals v. Rolfes Co., 454 N.W.2d 891, 893-94 (Iowa 1990).

26. In this case, there is direct evidence in the record that sex, and specifically pregnancy, was the motivating factor in Respondents Nissen Company's, Sahai's, and Clinic's respective refusal to hire Complainant Davies, to classify her as being fit for hire, or to refer or recommend her for employment in an assembly line position. There is also direct evidence that it is Respondents Sahai's and Clinic's policy and practice to refuse to refer for employment or classify as fit for employment pregnant females who are selected for assembly line positions at Respondent Nissen's plant. See Findings of Fact Nos. 15-18. The inquiry, however, does not end there, for any affirmative defenses of the Respondents must be examined. Trans World Airlines v. Thurston, 469 U.S. 111, 121, 124-25, 105 S. Ct. 613, 83 L.Ed. 2d 523, 533 (1985).

27. Only one such affirmative defense is available. Respondents had to establish that sex (i.e. nonpregnancy) was a bona fide occupational qualification (BFOQ) for assembly line positions at Respondent Nissen Company's plant. "That is, that [the] worker must not be pregnant in order to perform the job capably." Omilian, Sex-Based Employment Discrimination §20.06 (1993). See, Iowa Department of Social Services v. Iowa Merit Employment Department, 261 N.W.2d 161, 166 (Iowa 1977); Cedar Rapids Community School Dist. v. Parr, 227 N.W.2d 486, 496 (Iowa 1975). For reasons discussed in greater detail below, the Respondents' failed to meet their burden of persuasion with regard to establishing this affirmative defense to these allegations. See Findings of Facts Nos. 21-30.

VII. Respondents Have Not Proven Any "Bona Fide Occupational Qualification" (BFOQ) Affirmative Defense:

28. The general rule is that "pregnant women who are able to work must be permitted to work on the same conditions as other employees." Atwood v. City of Des Moines, 485 N.W.2d 657, 660 (Iowa 1992). "An employer cannot refuse to hire a woman because of her pregnancy-related condition so long as she is able to perform the major functions necessary to perform the job." "Questions and Answers on Pregnancy Discrimination," EEOC Guidelines on Sex Discrimination, 29 C.F.R. §1604.

29. "[T}he 'unless based on the nature of the occupation' [exception set forth in Iowa Code] . . . section 601A.6 is 'akin to the bona fide occupational qualification [BFOQ] exception present in the federal fair employment legislation.'" Foods, Inc. v. Iowa Civil Rights Commission, 318 N.W.2d 162, 168 (Iowa 1982)(quoting Cedar Rapids Community School District v. Parr, 227 N.W.2d 486, 492 (Iowa 1975)). "An employer is permitted to discriminate on the basis of sex when such practice is justified by a bona fide occupational qualification." Polk County Juvenile Home v. Iowa Civil Rights Commission, 322 N.W.2d 913, 916 (Iowa Ct. App. 1982).

30. The relevant Bona Fide Occupational Qualification language in federal fair employment legislation allows otherwise illegal employment related actions "on the basis of . . . sex . . . in those certain instances where . . . sex . . . is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise." 42 U.S.C. §2000e-2(e).

31. As with any affirmative defense the Respondents bear the burden of persuasion with respect to the BFOQ defense, i.e. they must persuade the finder of fact by the greater weight of the evidence that their policy, of refusing to hire, or classify or refer for hire, pregnant women for assembly line positions, is based upon the nature of the occupation. See Cedar Rapids Community School District v. Parr, 227 N.W.2d 486, 492 (Iowa 1975).

32. The United States Supreme Court has held that "the BFOQ exception was in fact meant to be an extremely narrow exception to the general prohibition of discrimination on the basis of sex" in employment. Dothard v. Rawlinson, 433 U.S. 321, 334, 15 Fair Empl. Prac. Cas. 10, 16 (1977)(emphasis added).

33. "Since the BFOQ exception is contrary to the premise of the Iowa Civil Rights Act, it must be strictly construed." Polk County Juvenile Home v. Iowa Civil Rights Commission, 322 N.W.2d 913, 916 (Iowa Ct. App. 1982). "In order to justify the BFOQ exception, there must be no less restrictive alternative reasonably available to the employer." Id.

34. After noting that the BFOQ exception is read equally narrowly in both sex and age discrimination cases, the United States Supreme Court held that "[t]he wording of the BFOQ defense contains several terms of restriction that indicate that the exception reaches only special situations. . . . where . . . discrimination is 'reasonably necessary' to the 'normal operation' of the 'particular' business." Auto Workers v. Johnson Controls, 499 U.S. 187, 55 Fair Empl. Prac. Cas. 365, 372 (1991). Each of these terms:

prevents the use of general subjective standards and favors an objective verifiable requirement. But the most telling term is "occupational"; this indicates that these objective verifiable requirements must concern job-related skills and aptitudes. . . . By modifying "qualification" with "occupational," Congress narrowed the term to qualifications that affect an employee's ability to do the job.

Id. (emphasis added). In order to establish sex as a BFOQ, there must be a "high correlation between sex and ability to perform job functions." Id. See, Iowa Department of Social Services v. Iowa Merit Employment Department, 261 N.W.2d 161, 166 (Iowa 1977)(BFOQ established when duties complainant cannot perform due to her sex "are very core and substance" of position); Polk County Juvenile Home v. Iowa Civil Rights Commission, 322 N.W.2d 913, 916 (Iowa Ct. App. 1982)(No BFOQ established for three Child Care Worker positions which could have been performed by either men or women).

35. In this case, the justification offered for sex discrimination is that Complainant Davies would face certain increased risks if she were to engage in assembly line work. There was no evidence that she, as a basically healthy pregnant woman, was unable to do the work. See Finding of Fact No. 29. What is known as the "safety exception to the BFOQ" allows discrimination on the basis of sex and pregnancy due to safety concerns only in narrow circumstances. Auto Workers v. Johnson Controls, 499 U.S. 187, 55 Fair Empl. Prac. Cas. 365, 372 (1991). These circumstances involve the safety of third persons, other than the mother or fetus, such as airline passengers. Id. at 373. These third persons must be customers or others whose safety is essential to the business. Id. There is no evidence in the record indicating that the reasons for refusing Complainant Davies employment on the assembly line involves the safety of any such third persons. See Finding of Fact No. 22.

36. In pregnancy discrimination cases, "danger to a woman herself does not justify [such] discrimination." Id. (citing Dothard v. Rawlinson, 433 U.S. at 335, 15 Fair Empl. Prac. Cas. at 16). "[T]he argument that a particular job is too dangerous for women may appropriately be met by the rejoinder that it is the purpose of Title VII to allow the individual woman to make that choice herself." Dothard v. Rawlinson, 433 U.S. at 335, 15 Fair Empl. Prac. Cas. at 16).

37. Fetal safety concerns also do not legally justify exclusion of pregnant women from employment. Auto Workers v. Johnson Controls, 499 U.S. 187, 55 Fair Empl. Prac. Cas. 365, 373 (1991). Fetal safety is "best left to the mother" and not determined by the employer or its agents, see id. (citing with approval Burwell v. Eastern Air Lines, Inc., 633 F.2d 361, 371 (4th Cir. 1980) and In Re National Airlines, Inc., 434 F. Supp. 249, 259 (SD Fla. 1977)), nor indeed by the courts [and, by implication, civil rights agencies acting in an adjudicatory capacity]. National Airlines at 259. The BFOQ provision permits no "fetal protection policies that mandate particular standards for pregnant . . . women." Auto Workers v. Johnson Controls, 499 U.S. 187, 55 Fair Empl. Prac. Cas. at 373.

38. The law is summarized by the Fourth Circuit Court of Appeals in Burwell:

[The employer's] contention that an element of business necessity is its consideration for the safety of the pregnant [employee] and her unborn child is not persuasive. If this personal compassion can be attributed to corporate policy, it is commendable, but in the area of civil rights, personal risk decisions not affecting business operations are best left to individuals who are the targets of discrimination.

Burwell v. Eastern Air Lines, Inc., 633 F.2d 361, 371 (4th Cir. 1980). Respondents have not established that nonpregnancy is a BFOQ for assembly line positions at the Nissen Company plant.

VIII. The Actions of Respondents Sahai and Clinic Are Not Excused By Any Physician-Patient Relationship Between Dr. Sahai and Complainant Davies:

39. Without citation to any legal authority, Respondents Sahai and Clinic suggest that they cannot be held liable for discrimination in this case because physicians conducting pre-employment physicals should not be "placed in a position where they have to choose between violating their Hippocratic Oath to not knowingly do anything to harm a patient or face discrimination allegations." Respondent's Brief at 26. The facts of this case involve no such choice.

40. First, there was no physician-patient relationship between Complainant Davies and Dr. Sahai at the time of her pre-employment physical. Respondents have admitted as much by repeatedly recognizing on brief that Davies was a "former patient" at the time of her examination. See Finding of Fact No. 31. This admission is binding on the Commission. See Conclusion of Law No. 3A.

41. The greater weight of legal authority holds that "[w]hen a physician performs a pre-employment physical examination on behalf of a prospective employer . . . the examinee is not deemed to be the physician's patient, and the physician-patient relationship does not arise." Louisell, 1 Medical Malpractice ¶ 8.02 (1991). See also Pegalis, 1 American Law of Malpractice 2d §2.4 (1992); Annot., 10 A.L.R.3d 1071, 1073 (1966) & Supp. (1993). The same holds true in other circumstances where a person is examined by a physician on behalf of another. See e.g. In Interest of Hoppe, 289 N.W.2d 613, 617 (Iowa 1980)(physician-patient relationship does not arise from court ordered examination).

42. The applicability of the Hippocratic Oath assumes an existing physician-patient relationship. McCafferty, Medical Malpractice: Bases of Liability §1.02 (1985). The physician-patient relationship is predicated on:

[T]he patient [seeking] and obtain[ing] the services of the physician because of [his] special knowledge and skill [in diagnosing and treating diseases and injuries]. . . . The main obligation of the physician imposed upon him by law is the exercise of due care and skill in the treatment of his patient. [This] includes . . . his obligation to fully inform the patient of his condition, to continue to provide for medical care once the . . . relationship has been established, to refer him to a specialist, if necessary, and to obtain the patient's informed consent to the medical treatment or operation.

61 AM. JUR. 2D Physicians, Surgeons, and Other Healers §167 (1981). In this case, it is clear that Complainant Davies was not seeking out treatment when she went for the pre-employment physical. See Finding of Fact No. 32.

43. Second, even if there had been a physician-patient relationship between Complainant Davies and Dr. Sahai, the patient has the virtually absolute right to refuse to follow the physician's advice or treatment. The relationship does not give the physician the right to compel the patient to follow a course of advice or treatment. Macdonald, Health Care Law: A Practical Guide §18.04(1) (1986). Thus, the applicant who is a patient has essentially the same right to determine what personal risks she wishes to take, with respect to employment, as an applicant who is not a patient. See Conclusion of Law No. 36. Employers, and presumably their agents, are, however, permitted to inform pregnant applicants of potential risks inherent in the job, including special risks they may face. Auto Workers v. Johnson Controls, 499 U.S. 187, 55 Fair Empl. Prac. Cas. at 375.

44. Finally, Respondents Sahai and Clinic voluntarily chose to enter into the business of evaluating applicants for employers, classifying them, and deciding whether or not to refer them for employment. This made these Respondents subject to the prohibitions of the Iowa Civil Rights Act. There are no exceptions, express or implied, in the Act for physicians or medical clinics. See e.g. Iowa Code §601A.6 (216.6).