Sahai v. Davies

557 N.W.2d 898, 1997 Iowa Sup. LEXIS 3, 69 Empl. Prac. Dec. (CCH) 44,522, 72 Fair Empl. Prac. Cas. (BNA) 1820, 1997 WL 24837

• Court: Supreme Court of Iowa
• Decided: January 22, 1997
• Docket: 95-1620
• Status: Published

Opinions

CARTER, Justice.

The appellants, Subhash Sahai, a physician, and Webster City Medical Clinic, Inc., a professional corporation for the practice of medicine, challenge the district court’s order upholding a finding by the Iowa Civil Rights Commission that they were guilty of sexual discrimination in employment when, following a physical examination of a job applicant for a prospective employer, they recommended that a pregnant female applicant not be hired. Based on this finding, a monetary sanction of $11,000 plus interest was levied against appellants by the commission, and appellants were ordered to develop written policies concerning future recommendations to employers with respect to pregnant female applicants examined at the clinic at the employer’s request.

This judicial proceeding is for review of agency action as provided in Iowa Code section 17A.19 (1995). The respondents in the district court and appellees in this court are the Iowa Civil Rights Commission and the complainant, Stacey D. Davies. After reviewing the record and considering the arguments presented, we reverse the judgment of the district court and the decision of the Iowa Civil Rights Commission.

The complainant, Stacey D. Davies, applied for work at the Nissen Company in Webster City in the summer of 1989. Nissen is a meat packing facility that does not have a kill floor. Work at that plant primarily involves packing smaller processed meats such as wieners or franks. Davies was interviewed for a position on the assembly line at Nissen on September 8,1989.

The vice president of production determined that she was qualified for the job and advised her that she would be hired if she could pass a physical examination and drug test. The Nissen representative arranged for Davies to obtain a physical examination and drug test at the Webster City Medical Clinic. Pursuant to a contract with Nissen, the clinic regularly conducted physical examinations on prospective employees and provided Nissen with the results and recommendations concerning physical abilities to do the job. Davies was originally scheduled to see a Dr. Schoultz for her physical examination. When she informed Dr. Schoultz that she was fourteen weeks into a pregnancy and that Dr. Sahai of the same clinic had delivered her first child, Dr. Schoultz thought it preferable to have Dr. Sahai perform the examination.

Dr. Sahai is a graduate of the University of Iowa Medical School and a board-certified family practice specialist. He performed a complete physical examination on Davies, including obtaining a current patient history concerning alcohol usage, allergies, potential pulmonary problems, fractures, mental disease, diabetes, kidney trouble, hearing difficulties, coronary condition, tumors, prior back pain, prior surgeries, and medications that Davies was then taking. Davies’ blood pressure was taken and recorded, and a physical examination was completed as to height, weight, vision, hearing, cardiovascular sufficiency, and respiratory sufficiency. An abdominal examination was performed as well as genito-urinary, gastrointestinal, nervous system and joint examinations.

Upon completing the examination, Dr. Sa-hai completed a medical form evidencing the results and, in a space on that form that indicated whether Davies was approved for the prospective work, checked a box indicating “No.” That recommendation was communicated to Nissen officials by telephone the same day. In this conversation, Dr. Sahai informed Nissen personnel employees that his decision was made with respect to assembly line work and indicated that Davies was physically able to perform less-demanding work if available. Dr. Sahai testified at the administrative hearing that a written report followed approximately two days later.

Acting on Dr. Sahai’s oral report, Nissen Company personnel managers declined to hire Davies for the available assembly line position. No less physically demanding position was available at that time. Approximately three months after the birth of her child, Davies reapplied for work with Nissen and was hired as a packager of hot dogs. She worked in that position for approximately four months.

Davies filed a complaint against Nissen, the clinic, and Dr. Sahai, contending that her failure to obtain the assembly line position as a result of her pregnancy was an unlawful discrimination in employment based on sex. The issues involving Nissen are not involved on this appeal. With respect to the claims against the clinic and Dr. Sahai, an administrative law judge took evidence and filed a proposed decision finding that (1) not only employers but all entities that play a role in hiring decisions are subject to the statutory prohibitions against employment discrimination, (2) any classification based on pregnancy is a distinction based on sex, and (3) the only defense available to the clinic and Dr. Sahai was to show that absence of pregnancy was a bona fide occupational qualification for an assembly line position at Nissen.

With respect to the third point listed above, the hearing officer concluded that the clinic and Dr. Sahai failed to establish a job-related physical disqualification based on pregnancy because them concerns were not with plaintiffs ability to perform the work but rather with the incremental increase in the health risk to her from assembly line work as her stages of pregnancy progressed. This proposed decision was adopted as the final agency action in the case. After being reviewed by the district court pursuant to section 17A.19, the final agency order, including imposition of sanctions, was affirmed.

In challenging the orders of the Civil Rights Commission, the clinic and Dr. Sahai urge that their only role in the hiring process was to conduct a physical examination of a job applicant and report the results to the prospective employer together with an opinion concerning the applicant’s physical ability to perform the particular job.¹ The employer, appellants argue, was free to treat that opinion as it wished for purposes of the hiring decision. They maintain that in such instances the responsibility to evaluate the impact of the civil rights laws on the ultimate hiring decision is the employer’s responsibility and should play no role in a physician’s formulation of a medical judgment.

In seeking to counter these arguments, the commission and Davies argue that the clinic’s arrangement with Nissen placed it in a position to control the latter’s hiring decisions. As a result, she urges, the clinic and its member doctors should be subject to sanction under the employment discrimination statutes (Iowa Code § 216.6(l)(a)) for recommendations that cause the employer to render discriminatory hiring decisions. We disagree with this contention.

The arguments that the commission and Davies set forth take note of the fact that the controlling statute, § 216.6(l)(a), prohibits “any person” from discriminating in employment based on sex rather than “any employer.” Although we agree that this language extends the prohibition of the act to some situations in which a person guilty of discriminatory conduct is not the actual employer of the person discriminated against, it does not, in our view, embrace the actions of the clinic and Dr. Sahai in the present case. That is due to the fact that within the context of the Nissen hiring decision the clinic’s role was advisory. The advice being sought was an independent medical judgment. Recommendations made in this context that are directly responsive to a prospective employer’s request are not in our view discriminatory actions.

We reach the conclusion stated above as a matter of statutory interpretation in our review of agency action under Iowa Code section 17A.19(8)(a) (when the agency has violated a statute). Consequently, our task is to determine whether the district court’s view as to the meaning of the statute accords with our own interpretation. Davenport Bank & Trust Co. v. Iowa Dep’t of Revenue, 457 N.W.2d 610, 612 (Iowa 1990); Iowa Auto Dealers Ass’n v. Iowa Dep’t of Revenue, 301 N.W.2d 760, 762 (Iowa 1981). Whether a particular state of facts fall under the statute as interpreted by this court is an adjunct issue of statutory construction when that decision may be made by viewing the facts most favorably toward the opposing point of view.

The operative facts in the present dispute are such that it poses both sexual discrimination issues and physical disability issues. For this reason, we find that the conclusion of the commission that the case presents a straight bona fide occupational qualification issue is not well taken. As developed in our prior cases, the doctrine of bona fide occupational qualification has reference to general personnel policies applied to specific categories of employees. See Quaker Oats Co. v. Cedar Rapids Human Rights Comm’n, 268 N.W.2d 862, 867 (Iowa 1978); Cedar Rapids Community Sch. Dist. v. Parr, 227 N.W.2d 486, 496 (Iowa 1975). The present case, on the other hand, relates to an ad hoc evaluation of a single job applicant with respect to physical qualifications for job performance. Although we have recognized that “any classification which relies on pregnancy as a determinative criteria is a distinction based on sex,” Quaker Oats Co., 268 N.W.2d at 867, we have never indicated that physical disabilities caused by pregnancy, if shown to exist, may not be a factor in a hiring decision if the disability affects performance of the job. In order to determine whether this is the case with respect to a particular employee or prospective employee, an employer should be free to seek out expert medical opinion and those professionals asked to give such opinions should be free to make independent medical judgments.²

The commission believed that Dr. Sahai’s recommendation was not an independent medical judgment concerning Davies because he candidly admitted during cross-examination that he would make the same recommendation against assembly line work for any prospective female employee in Davies’ stage of pregnancy. We are convinced, however, that physicians regularly issue medical opinions based on typical prognoses for similarly situated clinical settings. This does not mean that such evaluations are not individualized when rendered with respect to a particular individual in connection with a physical examination of that person.

The commission also rejected Dr. Sa-hai’s claim that he was only giving advice concerning Davies’ ability to do the job because his recommendation that Nissen not hire her was based on his concern for the potential adverse physical consequences to Davies rather than her physical ability to perform the requirements of the job while pregnant. In this regard, the commission relied on the following observation in a federal court decision involving pregnancy discrimination:

[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).

The evidence does reveal that Davies’ physical well-being was of paramount consideration in Dr. Sahai’s recommendation and probably influenced him more than her potential ability to perform the physical tasks of assembly line work. This circumstance, however, only establishes that Dr. Sahai’s opinion did not contain all of the information that Nissen would need in order to evaluate the potential employment discrimination aspects of its hiring decision. It does not mean that the potential health consequences to Davies were a matter of no concern to Nissen. This was information that Nissen could use in shaping Davies’ job responsibilities if it did hire her. We believe it was the type of information that Dr. Sahai should have been free to include in his opinion.

It is perhaps unfortunate that the form of Dr. Sahai’s written opinion was a conclusory recommendation as to whether Davies’ should be hired. The record indicates, however, that immediately following her physical examination, Dr. Sahai phoned a Nissen personnel representative and informed him that he did not believe a young woman who was fourteen weeks pregnant should be doing assembly line work. He emphasized that this was particularly true for a newly hired employee that had never done that type of work before. At this point, Nissen representatives were free to ask follow-up questions concerning whether Dr. Sahai’s recommendation was based on his beliefs concerning Davies’ ability to perform assembly line work or upon potential physical harm to her from doing that work. The fact that Nissen did not ask these follow-up questions and, as a result, might have violated employment discrimination laws, does not make Dr. Sahai’s recommendation, based on health considerations, a sexually discriminatory act.

In reaching these conclusions, we have considered the line of cases decided under federal sex discrimination statutes that are commonly referred to as the “gatekeeper” cases. These cases are Zaklama v. Mt. Sinai Medical Center, 842 F.2d 291 (11th Cir.1988); Pardazi v. Cullman Medical Center, 838 F.2d 1155 (11th Cir.1988); Doe v. St. Joseph’s Hospital, 788 F.2d 411 (7th Cir.1986); and Gomez v. Alexian Bros. Hospital, 698 F.2d 1019, 1021 (9th Cir.1983). These cases involved alleged discriminatory practices in the denial of hospital staff privileges or residency status to physicians and thus foreclosing their employment by third persons. It was determined that the hospitals involved had by their actions violated federal employment discrimination laws even though they were not the actual employers of the complaining parties. In each of these cases, the alleged discriminatory acts were with respect to the national origin of the physician. The exercise of independent professional judgment by the hospitals alleged to have discriminated was not at issue. We find that these authorities offer no support for the commission’s position in the present case.

As a final matter, we wish to note that our decision does not suggest that the clinic or Dr. Sahai are totally without responsibility for the recommendations that they make under their agreement with Nissen. Their liability to Nissen, as the party that hired them, is established by the terms of the contract of hire. In addition, some authorities recognize that physicians employed by a prospective employer to examine a job applicant may be liable to that applicant if an inaccurate report injures the examinee’s employment chances. See 61 Am.Jur.2d Physicians, Surgeons, and Other Healers § 297, at 446 (1981). We express no view concerning this type of liability in the present case because it exists, if at all, outside the ambit of the employment discrimination laws set forth in section 216.6. Because we find that the acts of the clinic and Dr. Sahai of which Davies complained provide no claim under that statute, we reverse the judgment of the district court and the decision of the Iowa Civil Rights Commission.

REVERSED.

All justices concur except HARRIS, J., who concurs in the result, and LAVORATO, NEUMAN, ANDREASEN, and TERNUS, JJ., who dissent.

1 . For this purpose Dr. Sahai and other doctors at the clinic had visited the Nissen plant and familiarized themselves with the nature of the work for assembly line positions, as well as other positions.

2 . The commission believed that Dr. Sahai should not be able to use his right to make an independent medical judgment as a defense in this matter because there was no physician and patient relationship between him and Davies. Accepting the commission's conclusion that Davies was not Dr. Sahai's patient, we nevertheless believe that Nissen, as the party that had contracted for Dr. Sahai's services, was entitled to his independent medical judgment, and he was entitled to give it that judgment.