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 CONTINUED:

IV. RESPONDENTS HAVE FAILED TO ESTABLISH THAT NONPREGNANCY IS A BONA FIDE OCCUPATIONAL QUALIFICATION (BFOQ) FOR THE POSITION OF ASSEMBLY LINE (PRODUCTION LINE) WORKER:

A. Respondents Sahai and Clinic Have Admitted, On Brief, the Reasons For Dr. Sahai's Recommendations, All of Which Are Related to Increased Risks Faced By Complainant Davies Due to Her Pregnancy:

21. On brief, Respondents Sahai and Clinic have set forth reasons for the recommendation that Complainant Davies not be hired for the position of assembly line worker. While an attempt is made to argue that these reasons are somehow separate from pregnancy, their one common denominator is that each represents an increased risk to her health which Complainant Davies, as a pregnant female, might face on the assembly line which she would not confront if she were not pregnant. (Respondent's Brief at 21-26). Respondents Sahai and Clinic admit that Dr. Sahai's reasons constitute "concerns about her (Complainant's) health" or "concerns regarding the health of [Complainant Davies]." (Respondent's Brief at 21, 26). These admissions on brief are contrary to Respondents Sahai's and Clinic's interests and are binding on the Commission. See Conclusions of Law Nos. 3A. For reasons set forth in the conclusions of law, none of these reasons prove that nonpregnancy is a bona fide occupational qualification for the position of assembly line worker at the Nissen Company. See Conclusions of Law Nos. 35-38.

B. There Is No Evidence In the Record That Dr. Sahai's Recommendations Were Based on Safety Risks to Anyone But Complainant Davies:

22. There is no evidence in the record that the decisions of Respondents Sahai, Clinic, and Nissen Company with respect to hiring Complainant Davies were in any way based on any safety risk to Nissen Company employees, customers or other third persons. On brief, Respondent argues that Dr. Sahai's recommendation was based on "concerns regarding the health of [Complainant Davies] and the health of her unborn fetus," (Respondent's Brief at 25-26). However, the only specific health concerns expressed in the record by Dr. Sahai, with respect to his recommendations to Respondent Nissen Company on Complainant Davies, were concerns with increased risks to her health. See Findings of Fact Nos. 23-30.

C. Incremental Safety Risks Related To Complainant Davies's Pregnancy Were Relied on by Respondent Sahai In Making Recommendations to Respondent Nissen Company:

23. It has already been found (a) that Respondent Sahai had a policy of not hiring pregnant females for assembly line positions, and (b) that this policy was invoked by Respondent Sahai in making his recommendation to not hire Complainant Davies. See Findings of Fact Nos. 17-18. Respondent Sahai also admitted that the possible ailments which he thought might result from assembly line work by a pregnant female were not ones he had observed in Complainant Davies. Rather, his concerns with respect to Complainant Davies were based on "generalizations about pregnant women." (CP # 6 at p. 35-36).

24. The specific concerns of Respondent Sahai with respect to Complainant Davies working on the assembly line were: (1) increased risk of carpel tunnel syndrome associated with pregnancy, (2) the back pain associated with pregnancy, and (3) the joint pain associated with pregnancy. (Tr. at 109).

25. Persons, whether pregnant or not, performing repetitive activities on an assembly line, such as working with a knife, lifting, bending and packing, have an increased risk of sustaining cumulative trauma disorders such as carpel tunnel syndrome. (Tr. at 106). With respect to lifting, there is some evidence suggesting that there were lifting requirements of approximately 50 pounds. (R. EX. B at p. 31; Tr. at 119). Complainant Davies, however, was subsequently hired for the assembly line by Respondent Nissen Company in June of 1990, after her pregnancy. At that time, she only had to lift a maximum weight of 10-15 pounds. (Tr. at 137-38). There were, in any event, assistive devices to aid assembly line workers with lifting tasks. (Tr. at 119).

26. The risk of carpel tunnel syndrome is exacerbated by pregnancy. (Tr. at 106). There is, however, no evidence in the record showing statistical estimates of the incidence, probability, or degree of risk for carpel tunnel syndrome, backache or joint pain for either pregnant or nonpregnant employees.

27. On deposition, Dr. Sahai testified that there is a "high incidence" of carpel tunnel syndrome in pregnant employees. (CP. EX. # 6 at p. 25-26). But it is not shown in the record how this translates into numbers. For example, is a "high incidence" of one out of one thousand being compared to a "normal incidence" of one out of ten thousand? At hearing, Dr. Sahai testified that assembly line workers in general have a "high incidence" of cumulative trauma disorders, of which carpel tunnel syndrome is one. (Tr. at 106). There are no estimates in the record showing what percentage of pregnant or nonpregnant employees doing repetitive work can be expected to suffer from the syndrome over any given period of time.

28. Either nonpregnant or pregnant employees working on an assembly line may have joint pain. In thirty to forty degree temperatures, as at Nissen, this may be complicated by a stiffness of the joints known as gelling phenomenon. (Tr. at 109).

29. The preponderance of the evidence in the record demonstrates that Dr. Sahai never had any reason to believe that Complainant Davies had ever experienced carpel tunnel syndrome or any other form of cumulative trauma disorder, back pain, or joint pain. (R. EX. A; CP # 6 at p. 35-36; Tr. at 121, 124). He had been Complainant Davies's doctor during her first pregnancy in 1987. Davies had complained of abdominal pain on one occasion during that pregnancy. At another point, she had complained of a headache. (Tr. at 121-22). At the end of Dr. Sahai's examination of Complainant Davies for Nissen, on September 8, 1989, she stood before him as a basically healthy pregnant woman. (R. EX. A; C. EX. # 2; Tr. at 124).

D. There is No Evidence To Suggest That Pregnant Females Were Necessarily Unable to Perform the Job of Assembly Line Worker.

30. There is no evidence that Complainant Davies was unable, on September 8, 1989, to do the assembly line work. Dr. Sahai's concerns involved only incremental future risks to Complainant Davies, and not any present inability to perform the job. See Findings of Fact Nos. 23-29. At least one woman, who was hired by Respondent Nissen prior to her pregnancy, did work on the assembly line while pregnant. (R. EX. B at p. 38).

V. AT THE TIME OF HER EXAMINATION ON SEPTEMBER 8, 1989, COMPLAINANT DAVIES AND DR. SAHAI DID NOT HAVE A CURRENT PHYSICIAN-PATIENT RELATIONSHIP:

31. On brief, Respondents Sahai and Clinic repeatedly refer to Complainant Davies as being a "former patient" of Dr. Sahai's at the time he made his recommendation to Respondent Nissen. (Respondent's Brief at 21, 25). The Commission is bound by these admissions on brief. See Conclusions of Law No. 3A.

32. Furthermore, the evidence previously discussed demonstrates that Complainant Davies did not go to Respondent Clinic on September 9, 1989 for diagnosis and treatment. She went there at the direction of Respondent Nissen Company so she could be examined for a recommendation or referral by the Clinic with respect to her employment at Nissen. See Findings of Facts Nos. 6-7A, 9-14, 19-20.

33. Respondent Sahai did not know if it would have been a breach of medical ethics, as set forth in the Hippocratic Oath's admonition to do no harm, for him to recommend Complainant Davies for employment at Nissen. (Tr. at 114- 15). He did feel uncomfortable in sending her to work there. (Tr. at 114). However, as pointed out in the Conclusions of Law, the applicability of the Hippocratic Oath depends on a present physician-patient relationship. See Conclusion of Law No. 42. In light of these facts, it must be concluded that Complainant Davies and Dr. Sahai did not have a physician-patient relationship at the time of the examination on September 8, 1989.

VI.REMEDIES:

A. Back Pay:

1. Gross Earnings:

34. If Complainant Davies had started work on September 11, 1989, the Monday following the examination, she would have received a total gross income of four thousand eighty- five dollars and seventy cents ($4,085.70). This amount is based on a representation made by Respondent Nissen Company's attorney, during a telephone conversation to a Commission staff member on September 21, 1990. The attorney indicated that the person hired in Davies's place received this amount from the time of hire until a plant layoff on December 8, 1989. (C. EX. # 5). This amount is also consistent with the amount mentioned by Complainant Davies during her deposition testimony. (R. EX. B at 72).

35. This figure is also consistent with Complainant Davies's testimony that Hakes had informed her she was to be hired at $7.65 per hour. (Tr. at 25). Due to a new union contract at Nissen, the pay for General Pack Labor positions was increased to $8.05 per hour effective October 6, 1989. "General Pack Labor" was the designation for the lowest paid positions under the contract. (CP. EX. # 4). Use of this classification is consistent with evidence indicating Davies had applied for a "laborer" position, (R. EX. C at 6). The standard work week at Respondent Nissen was a forty hour week. (C. EX. # 4).

36. Using these facts, an estimate of Complainant Davies's earnings from September 11, 1989 to December 8, 1989 follows:

A. Gross earnings for the 4 week period from September 11, 1989 to October 6, 1989 at the rate of $7.65 per hour: 40 hours/week X 4 weeks X $7.65 per hour = $1224.00.

B. Gross earnings for the 8.8 week period from October 7, 1989 to December 8, 1989 at the rate of $8.05 per hour for a 40 hour week = 40 hours/week X 8.8 weeks X $8.05 per hour = $2833.60.

C. ESTIMATED TOTAL GROSS EARNINGS FROM SEPTEMBER 11, 1989 TO DECEMBER 8, 1989 = (A + B) = ($1224.00 + $2833.60) = $4057.60.

37. Since the exact amount of gross income paid to the person who was hired in place of Complainant Davies ($4,085.70) is already in the record, that amount is established as what the Complainant's total gross earnings would have been if she had not been rejected for the assembly line laborer position on September 8, 1989. See Finding of Fact No. 34.

2. Interim Earnings:

38. After her rejection at Nissen, Complainant Davies worked at Flashmart for a maximum of six weeks. She worked there for an average of 17.5 hours per week at the minimum wage. (Tr. at 23-24). Official notice is taken that, in 1989, the minimum wage was $3.35 per hour. Fairness to the parties does not require that they be given the opportunity to contest that fact. Therefore, her interim earnings at Flashmart would be: $3.35 per hour X 17.5 hours per week X 6 weeks = $351.75. She left for a higher paying full-time job at CDS. (Tr. at 23).

39. Complainant Davies was at CDS for a 12 to 16 weeks. (Tr. at p. 24). Since Davies would only have been at Nissen a total of 12.8 weeks, including the six week period she was with Flashmart, it is necessary to determine what her earnings would have been at CDS only for the remaining 6.8 week period. Complainant Davies was paid an amount somewhere between the minimum wage (of $3.35 per hour) and $4.00 per hour. (Tr. at 24). The midpoint between those two amounts is $3.68 per hour. Therefore her interim earnings for seven weeks at CDS may be estimated as follows: $3.68 per hour X 40 hours/ week X 6.8 weeks = $1000.96.

40. TOTAL INTERIM EARNINGS = [Interim earnings at Flashmart + Interim Earnings at CDS] = $351.75 + $1000.96 = $1352.71.

3. Total Back Pay After Deduction of Interim Earnings:

41. Total Back Pay = [Gross Back Pay - Interim Earnings] = $4,085.70 - $1352.71 = $2732.99 TOTAL BACK PAY.

B. Emotional Distress Damages:

42. Complainant Stacey Davies suffered substantial and serious emotional distress due to the Respondents respective failure to recommend her for hire or to hire her at the Nissen Company because of her pregnancy.

43. When Respondent Sahai informed Complainant Davies that he was going to recommend that she not be hired for the job, she asked him why and started to cry. (Tr. at 29). She had many feelings and reactions to her rejection. "I was hurt, I was mad, because I knew I needed the job." She felt it was a violation of her civil rights "[b]ecause I didn't feel that--they couldn't do that to me just because I was pregnant. I mean I was healthy. I could do the job. I didn't feel that there was no reason that they shouldn't hire me for the job." (Tr. at 30-31).

44. Prior to her rejection for the position, Complainant Davies was happy and excited about the prospect of well-paying employment with Respondent Nissen Company. (Tr. at 78). She needed the medical insurance for herself and her children. She hoped she would be able to get her own place and take care of her kids, i.e. her first child and the unborn child. (Tr. at 66, 78, 83). Once the recommendation was made that she not be hired, Complainant Davies became depressed and angry due to the recommendation and the failure to hire her. (Tr. at 80).

45. The Complainant talked frequently to her mother about the decision to not hire her. (Tr. at 84). Davies became withdrawn, didn't want to do anything, and wanted "to stay home and more or less mope around." (Tr. at 85). The depression arising out of these events lasted to at least one year after the birth of the child on April 2, 1990. (Tr. at 12, 85-86).

46. There is another event which came about due to several factors, including Complainant's being rejected for the position at Nissen. That event is that Complainant Davies gave up her infant, Zach, for adoption at birth. (Tr. at 31-32). There can be little doubt, based on all the evidence, that event has caused and still causes Complainant Davies substantial emotional distress. (Tr. at 31-33, 65-66, 80-81, 84).

47. During the course of the hearing, for example, while testifying that, "because I didn't get the job at Nissen's I couldn't support my kids, so I had to give my baby up for adoption," Complainant Davies broke down crying. A five minute recess was taken at that point to allow the witness to regain her composure. (Tr. at 31-32). However, because factors other than the failure to hire at Nissen's were involved, care has been taken to ensure that any award does not include damages resulting from these other factors.

48. These other factors, which also played a part in the decision to give her infant up for adoption, included Complainant's reluctance to go on welfare for support, the short-term nature of the relationship Complainant Davies had with the father, and a lack of knowledge about the father. (Tr. at 32, 35-36, 88-89).

49. While Complainant Davies has not consulted with doctors concerning the emotional distress arising from all these events, she does consult with her mother, sister and a counselor, Marlae Beukelman, who was provided by the Bethany Christian Service as part of the adoption process. (Tr. at 32-34, 36, 65-66, 68, 80-84, 86-87). As of the date of the hearing, Complainant Davies consulted with her counselor not only with respect to the adoption, but also concerning the distress arising from the failure of Nissen Corporation to hire her. (Tr. at 33, 66).

50. Given the duration and severity of the emotional distress arising from the failure of Respondents to recommend her for hire or to hire her due to her pregnancy, an award in the sum of eight thousand five hundred dollars ($8,500.00) is full, reasonable, and adequate compensation for the distress sustained by Complainant Davies due to sex discrimination.