Salt Lake City Corp. v. Confer

Decision Date12 October 1983
Docket NumberNo. 18707,18707
Citation674 P.2d 632
Parties37 Fair Empl.Prac.Cas. (BNA) 283, 33 Empl. Prac. Dec. P 34,284, 1 A.D. Cases 504 SALT LAKE CITY CORPORATION, Plaintiff and Respondent, v. Evelyn CONFER and The Industrial Commission of Utah, Defendants and Appellants.
CourtUtah Supreme Court

Walter Axelgard and George Sutton, Salt Lake City, for defendants and appellants.

Walter R. Miller, Salt Lake City, for plaintiff and respondent.

OAKS, Justice:

This is a case of first impression on the meaning of "handicap" in the Utah Anti-Discrimination Act, U.C.A., 1953, § 34-35-1, et seq. Finding that Salt Lake City Corporation had discriminated against Evelyn Confer, an applicant for employment, the Industrial Commission awarded her reinstatement plus lost wages for a period of twenty months (less her other earnings during that time) and attorney fees. On petition for a trial de novo, the district court granted summary judgment for the City. Confer pursues this appeal. We reverse and remand for further proceedings in the Commission.

The Anti-Discrimination Act was adopted in 1969. It forbade employment discrimination on the basis of race, color, sex, religion ancestry or national origin, except where those criteria were "a bona fide occupational qualification reasonably necessary to the normal operation of that particular business" or essential to its "motif, culture or atmosphere." § 34-35-6. The Act created an antidiscrimination division within the Industrial Commission, consisting of three members of the Commission. §§ 34-35-3 & -4. The antidiscrimination division was given power to administer the Act and (on behalf of the Commission) to adjudicate complaints, subject to a "trial de novo" in the district court. §§ 34-35-5, -7, & -8.

In 1979, the Legislature amended the Act by inserting the word "handicap" as a forbidden basis of discrimination and as a permitted criterion of bona fide occupational qualification. A prohibition against employment discrimination on the basis of "handicap" poses difficult conceptual and definitional problems, especially where, as here, the prohibition is simply inserted into a law drafted to forbid discrimination on other bases that are qualitatively different from "handicap." "Handicap" is not self-defining, and if defined very broadly could encompass some characteristics that might be legitimate criteria for some kinds of employment decisions. In such circumstances, a comprehensive definition is critical.

The 1979 amendment provides this definition of handicap:

"Handicap" means a physical or mental impairment which substantially limits one or more major life activity [sic].

§ 34-35-2(14). There is no published legislative history to disclose what the lawmakers intended by this one-word insert and its accompanying cryptic definition. The complexity of the subject and the difficulty of adjudicating controversies on the basis of such terse legislation are evident from the record in this case. 1

On the basis of his study of x-rays, Evelyn Confer's physician testified that she has a "mild grade 1 [the least serious grade] spondylolysis," which, in her case, is "an anomaly of the fifth lumbar vertebra, being forward on the spinal column approximately 3/8th of an inch." This condition is caused by "the failure of fusion at the back of the vertebra, and is usually considered to be congenital." Confer testified that during her entire lifetime, including prior employment requiring stressful physical activity and heavy lifting, and including the period of two normal pregnancies, she had never experienced any pain, discomfort, or other symptoms from her back. Prior to the physical examination incident to this application for employment, she was completely unaware of her spondylolysis.

Confer applied for a job as an operations officer at the Salt Lake International Airport. Operations officers handle a variety of duties in and around the airport, including airport security. They are often the first officials to arrive at a scene of potential trouble. They carry nightsticks, but not firearms. Our statutes classify "[a]ny officer of the security unit of any airport" operated by the city as a "[c]ategory III peace officer" with "total peace officer authority when on duty," § 77-1-3(5)(c), but the Commission in this case found that operations officers "do not have a law enforcement officer's authority to make arrests." It found that incidents involving a resisting individual are, wherever possible, handled by more than one operations officer or by "regular police officers."

Salt Lake City, through its Health Department and its Personnel Department, has a policy that all persons with any degree of spondylolysis are disqualified from employment in "arduous labor," which includes laborers, police officers, and fire fighters. It applied that policy to airport operations officers in this case. There is no claim that this application singled Confer out for different treatment than would have been accorded any other applicant for this position. The purpose of the City's policy and its application to this position was "to reduce the possibility of employment compensation and disability claims and to minimize the possibility of disruption in the Airport Operations Officers force at the airport."

The fact that Confer was physically fit to perform all of the functions of the job description of airport operations officer is uncontested. 2 Also uncontested is the fact that Confer commenced employment on May 12, 1980, and was terminated on that same day, before the completion of her shift, immediately upon her supervisor's receiving the report of the required physical examination, and solely for that reason. She filed her complaint of discrimination with the Commission on June 9, 1980.

The only issue on this appeal is whether the City's application of its policy to Confer constituted a violation of the Anti-Discrimination Act's prohibition against discrimination on the basis of handicap. § 34-35-6(1). This issue turns on the meaning of the definition of handicap, § 34-35-2(14), quoted earlier. To prevail, Confer must show that her spondylolysis is (1) an "impairment" and (2) that it "substantially limits" a "major life activity." Those issues will be treated in that order.

1. Impairment can be defined narrowly or broadly. The City's principal argument advocates the narrow definition, under which a person is impaired only if suffering some serious disability in a bodily function. E.g., American National Insurance Co. v. Fair Employment Practice Commission, 114 Cal.App.3d 1008, 170 Cal.Rptr. 887 (1981); Lyons v. Heritage House Restaurants, Inc., 89 Ill.App.2d 163, 432 N.E.2d 270 (1982). The district court adopted this definition and, since Confer admittedly is not functionally impaired, gave judgment for the City as a matter of law.

Confer argues for the broader definition of impairment adopted by the Commission in this case in reliance upon administrative and judicial construction of a comparable provision in the Rehabilitation Act of 1973, 29 U.S.C. § 706(7)(B) (Supp. III 1979). Under the Commission's definition, "impairment" is "any condition which weakens, diminishes, restricts, or otherwise damages an individual's health or physical or mental activity." 3 This definition was applied by the court in E.E. Black, Ltd. v. Marshall, 497 F.Supp. 1088, 1097-98 (D.Hawaii 1980), on which the Commission relied, and is there stated to be taken from Webster's Third International Dictionary (unabridged, 1967). Id. at 1097. See also Philadelphia Electric Co. v. Pennsylvania Human Relations Commission, Pa.Cmwlth., 448 A.2d 701, 704 n. 4, 706 (1982). Confer could be clearly found impaired under this definition. Indeed, the fact that a person with spondylolysis was "weaken[ed]" in physical activity was the reason for the policy the City followed in declining to hire her.

The fine briefs filed by the parties in this case contain ample authorities for the adoption of either definition of "impairment." Neither the words of the legislation nor its legislative history gives any basis for preferring one over another. In that circumstance, we deem it preferable to defer to the interpretation adopted by the administrative body to which the Legislature committed the administration of this Act. While the Commission's interpretation of this word is not the only reasonable interpretation that could have been adopted, it is well within the limits of reasonableness that confine judicial review of administrative decisions of this nature. Utah Department of Administrative Services v. Public Service Commission, Utah, 658 P.2d 601, 609-12 (1983). Because the district court held to the contrary as a matter of law, its judgment must be reversed. For reasons explained below, there are remaining issues of fact, and the case must therefore be remanded for further proceedings.

2. We next interpret the remaining elements of the statutory definition for the guidance of the trier of fact on remand.

If the Legislature contemplated a broad definition of the term "impairment," as the Commission has held, it clearly assigned two major qualifications with the words substantially limits and major life activity. Each limitation qualifies the types of "impairment" for which discrimination is forbidden, and each includes a word of magnification. The Legislature's apparent purpose was to prevent every termination or denial of employment on the basis of a physical or mental characteristic ("impairment") from constituting a prima facie case of discrimination on the basis of handicap.

Most or all persons have some physical or mental deviations from a norm or from personal or employer aspirations. Considerations of height, weight, sensory abilities, speech, pulse rate, blood pressure, and a whole variety of measures of mental ability are only a few characteristics whose variations can be deemed "impairments" under the broad definition...

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