Colorado Civil Rights Com'n v. ConAgra Flour Mill. Co., 85CA1432

Decision Date05 March 1987
Docket NumberNo. 85CA1432,85CA1432
Citation736 P.2d 842
Parties2 A.D. Cases 1554 COLORADO CIVIL RIGHTS COMMISSION, Appellee, and David B. Blessinger, Complainant-Appellee, v. CONAGRA FLOUR MILLING COMPANY, Respondent-Appellant. . II
CourtColorado Court of Appeals

Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Christa D. Taylor, Asst. Atty. Gen., Denver, for appellees.

McGrath, North, O'Malley & Kratz, P.C., Dean G. Kratz, Omaha, Neb., Brownstein Hyatt Farber & Madden, Richard S. Bayer, Timothy D. Knaus, Denver, for respondent-appellant.

BABCOCK, Judge.

Respondent, ConAgra Flour Milling Company (ConAgra), seeks review of a final order of the Colorado Civil Rights Commission (Commission) which found that it had discriminated against an employee because of his handicap, and which required it to reinstate the employee to his former position with back pay. We affirm.

The facts are not disputed. The issue is whether ConAgra's voluntary imposition of safety regulations promulgated by the U.S. Department of Transportation (DOT) on its intrastate private trucking operations constitutes a defense to a charge of unlawful discrimination because of handicap under § 24-34-402(1)(a), C.R.S. (1986 Cum.Supp.).

Complainant, David B. Blessinger, had worked as a truck driver for ConAgra and its predecessor since 1961. Blessinger has suffered since birth from left optic atrophy, which renders his left eye all but sightless. Despite this visual limitation, he holds a valid class A, B, and C Colorado driver's license, which qualifies him to drive any vehicle ConAgra uses, see Division of Motor Vehicles Regulation No. 42-2-101(2), 1 Code Colo. Reg. 204-6, although his license restricts him to driving vehicles with a left rear-view mirror, which is standard truck equipment and with which all of ConAgra's trucks are equipped. During his employment as a truck driver for ConAgra, Blessinger was not involved in any traffic accidents and had no traffic violations.

Blessinger's truck driving route consisted of hauling flour from ConAgra's mill in Commerce City to bakeries in Denver, then returning to Commerce City. His driving was entirely within the city limits of Denver, except when he left and returned to Commerce City. ConAgra stipulated that it was a private (as opposed to common) carrier within the state of Colorado, and one of its witnesses stated that none of its Colorado-based drivers ever drove outside the state.

ConAgra's policy since 1982 has been that all drivers must be able to meet DOT physical requirements and obtain a DOT medical certification, regardless of whether the drivers' activities and routes are covered by, or exempt from, DOT regulations. See 49 C.F.R. § 391. Conagra has adopted this policy even though the DOT regulations do not apply to motor carrier activities conducted entirely within a state, see 49 U.S.C. §§ 10501(b)(1), 10521(a)(1), 10525(a); they also contain an exemption for operations conducted wholly within a municipality, or between contiguous municipalities. See 49 C.F.R. §§ 390.16, 391.2(a), 1048.101.

The DOT regulations require, for a person to be physically qualified to drive a motor vehicle, that that person have distant visual acuity of at least 20/40 (Snellen) in each eye. 49 C.F.R. § 391.41(b)(10).

In September 1983, Blessinger was examined by ConAgra's doctor for the purpose of renewing Blessinger's medical certificate in accordance with 49 C.F.R. § 391.45(b) of the DOT regulations, which requires medical examinations for drivers every two years. ConAgra's doctor determined that because Blessinger has "extremely poor eyesight in his left eye," he could not meet DOT standards for visual acuity and, therefore, could not qualify for a DOT medical certificate. The visual acuity requirement is not subject to waiver. See 49 C.F.R. § 391.49.

Based on these medical findings, ConAgra notified Blessinger that he would be removed from his truck driver position and transferred to a nondriving position. In his new position, Blessinger's base wages were lower than his truck driver wages, he has to perform more demanding physical labor, and he does not have a specific job assignment. He has also lost his seniority with regard to job assignment under his union's collective bargaining agreement, he is now more subject to lay-offs than in his former position, and he has less choice concerning how much overtime he wishes to put in and whether to take overtime assignments when available.

Although Blessinger admits he is not medically certifiable under DOT regulations, an independent ophthamologist who examined Blessinger after his transfer determined that he was fully capable of performing a job as a truck driver because of his intact peripheral left eye vision, good central visual acuity, and his having learned to compensate for his visual defect throughout his life. The ophthamologist also noted that Blessinger's visual acuity in his right eye was 20/20 without correction.

Blessinger filed a complaint of discrimination with the Colorado Civil Rights Commission, alleging that he was denied compensation and other benefits because of his handicap. On March 10, 1984, the Commission's director found probable cause that ConAgra had violated § 24-34-402(1)(a), C.R.S. (1986 Cum.Supp.), and a hearing was held to determine whether ConAgra had unlawfully discriminated against Blessinger because of his handicap in violation of § 24-34-402(1)(a).

The Commission determined that ConAgra had discriminated against Blessinger on the basis of his handicap and, pursuant to § 24-34-405, C.R.S. (1982 Repl.Vol. 10), ordered Blessinger's reinstatement to his truck driver position with back pay, including projected overtime pay, and full seniority. Pursuant to § 24-34-306(9), C.R.S. (1982 Repl.Vol. 10), it also ordered ConAgra to cease and desist discriminating in employment on the basis of handicap, and to file remedial reports with the Commission as it instructed.

I.

ConAgra now seeks review of that order, contending that because of its compliance with DOT regulations, its transfer of Blessinger to a nondriving position was not a violation of § 24-34-402(1)(a). We disagree.

Section 24-34-402(1)(a) provides, in pertinent part, that it "shall" be a discriminatory employment practice:

"For an employer to refuse to hire, to discharge, to promote or demote, or to discriminate in matters of compensation against any person otherwise qualified because of handicap ... but, with regard to a handicap, it is not a discriminatory or unfair employment practice for an employer to act as provided in this paragraph (a) if there is no reasonable accommodation that the employer can make with regard to the handicap, the handicap actually disqualifies the person from the job, and the handicap has a significant impact on the job." (emphasis added)

Blessinger's left eye atrophy constitutes a "handicap" as defined by § 24-34-301(4), C.R.S. (1982 Repl.Vol. 10). The Commission found, and it is undisputed, that the sole reason for Blessinger's transfer to a lower-paying position was his inability to qualify for and obtain a DOT medical certificate under 49 C.F.R. §§ 391.4(b)(10) and 391.43 because of his defective vision.

The Commission also found that ConAgra offered no evidence that Blessinger's visual handicap actually disqualifies him from driving a truck in a safe and efficient manner, nor did it offer any testimony that his left eye atrophy has any significant impact on his ability to drive a truck. The Commission further found, and ConAgra admits, that it made no individual efforts to accommodate Blessinger's handicap so he could continue driving.

Because these findings are either conceded by the parties or supported by substantial evidence in the record, they are binding on review. See § 24-34-307(6), C.R.S. (1982 Repl.Vol. 10); Umberfield v. School District No. 11, 185 Colo. 165, 522 P.2d 730 (1974).

Nevertheless, ConAgra argues that its reliance on DOT safety regulations establishes a "bona fide occupational qualification" (BFOQ) which precludes a conclusion of discrimination where the handicapped employee cannot satisfy the BFOQ. ConAgra does not contend that § 24-34-402(1)(a) is preempted by federal regulations; the regulations are by their own provisions inapplicable to intrastate and intracity transportation. See 49 U.S.C. § 10525; 49 C.F.R. § 391.2. Rather, ConAgra relies on cases from other jurisdictions which have held that DOT safety regulations create a BFOQ, which failure to comply with constitutes a valid defense to a charge of discrimination based on handicap.

The BFOQ defense relates to whether an employer has reasonable cause to believe that all or substantially all persons in a specific class are unable to perform the job duties safely and efficiently, or that it is impossible or highly impractical to deal with members of the class on an individualized basis. See Weeks v. Southern Bell Telephone & Telegraph Co., 408 F.2d 228 (5th Cir.1969). If the employer carries its burden of proof, all persons within an otherwise protected class may be excluded from employment on the basis of handicap without inquiry as to whether certain members of the class may, in fact, be capable of safe and efficient job performance. See Sterling Transit Co. v. Fair Employment Practice Commission, 121 Cal.App.3d 791, 175 Cal.Rptr. 548 (1981); see also Weeks v. Southern Bell Telephone & Telegraph Co., supra (sex-based BFOQ); Hodgson v. Greyhound Lines, Inc., 499 F.2d 859 (7th Cir.1974) (age-based BFOQ); Usery v. Tamiami Trail Tours, Inc., 531 F.2d 224 (5th Cir.1976) (same). However, we conclude that because the unambiguous language of § 24-34-402(1)(a) contemplates a case by case determination of a handicapped individual's actual ability to perform a job safely and efficiently, see Silverstein v. Sisters of Charity, 43 Colo.App. 446, 614 P.2d 891 (1979), the BFOQ defense is not applicable to a...

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