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.

SUMMARY*

This matter came before the Iowa Civil Rights Commission on the amended Complaint, alleging discrimination in employment on the basis of sex, filed by Complainant Stacey Davies against the Respondents Nissen Company, Subhash Sahai, M.D., and Webster City Medical Clinic.

Complainant Davies alleges, through her original complaint and amendment, that the Respondent Nissen Company failed to hire her because of her sex, i.e. because she was pregnant. Through her complaint, she alleges that she was subjected to different treatment on the basis of her sex.

A public hearing on this complaint was held on August 18, 1992 before the Honorable Donald W. Bohlken, Administrative Law Judge, at the Hamilton County Courthouse in Webster City, Iowa. The Respondents Dr. Sahai and Webster City Medical Clinic, Inc. were represented by Joseph L. Fitzgibbons, Attorney. The Iowa Civil Rights Commission was represented by Teresa Baustian. Assistant Attorney General. The Complainant, Stacey Davies, was not represented by counsel, but was present at the hearing. The Respondent Nissen Company was neither present at the hearing nor represented by counsel.

The Commission's Brief and the Respondent's Brief were received on November 16, 1992.

Complainant Davies proved her allegation of discrimination in employment because of her sex under the disparate treatment theory. The Complainant established a prima facie case of discrimination of disparate treatment in hiring by direct evidence showing (a) that she was not hired for a production line position at the Nissen Company because of her pregnancy, (b) that she was informed of this reason by both Nissen Company and Dr. Sahai, and (c) this failure to hire Complainant was based on the recommendation of Dr. Sahai that she not be hired due to her pregnancy.

The Respondents failed to establish the affirmative defense that sex (i.e. nonpregnancy) was a bona fide occupational qualification for the production line position. Respondents Dr. Sahai and the Webster City Medical Clinic, Inc. failed to establish that Nissen Company's decision, and Dr. Sahai's recommendation to the company were based on Complainant Davies's present ability or inability to do the work. Rather, Dr. Sahai's recommendations focused on the increased personal risks faced by Complainant Davies and her unborn child if she worked on the production line. While such concerns may have been well-intentioned, the law is clear that the pregnant female applicant is to remain free to elect to face increased personal safety risks affecting either her or the fetus. While either the employer or a doctor or other entity who hires or classifies and refers applicants for hire is free to inform her of these risks, it is for the pregnant female applicant to decide whether or not she wishes to face such risks. See Conclusions of Law Nos. 36-38.

Nor is the conduct of Dr. Sahai excused by any physician-patient relationship. First, a pre- employment physical examination of a patient, and any subsequent reports or recommendations by the physician to the employer retaining the physician, do not create a physician-patient relationship and are outside of any such pre-existing relationship. Such examinations are conducted for the purpose of reporting the medical condition or fitness of the applicant to the employer. They are not examinations sought by a patient for the purpose of diagnosis and treatment as would be found in a physician-patient relationship. See Conclusions of Law Nos. 40.

Second, even if a physician-patient relationship were said to exist, the physician is free to give his advice or warnings, but cannot compel the patient to follow his advice, even if the physician is convinced that such advice is in the best interests of the patient. The patient has virtually complete freedom to decide whether or not to follow the advice. See Conclusions of Law Nos. 42-43. Here, Complainant Davies was not given the choice as to whether to work on the production line. The choice was made for her by Respondents. See Findings of Fact Nos. 15-20.

Complainant Davies has proven her case.

Remedies awarded include $2732.99 in back pay, and $8,500.00 in emotional distress damages.

*This summary is provided as an aid to understanding the decision. It is not part of the findings of fact and conclusions of law.