Montgomery Ward & Co. v. Bureau of Labor

SCHWAB, C. J.

Petitioner appeals from a decision of the Commissioner of the Bureau of Labor ruling that petitioner had unlawfully discriminated against the complainant, James Williams. This appeal involves construction of an Act of the 1973 legislature (Oregon Laws 1973, ch 660, p 1459) prohibiting discrimination against handicapped workers. ORS 659.400 et seq.

ORS 659.425(1) provides:

"It is an unlawful employment practice for any employer to refuse to hire * * * an individual [who] has a physical or mental handicap, unless it can be shown that the particular handicap prevents the performance of the work involved.”

"Handicap” is defined as

"* * * a physical or mental disability including but not limited to sensory disabilities and resulting in a handicap unrelated to a person’s ability to perform the duties of a particular job or position for which he would otherwise be eligible and qualified * * *.” ORS 659.400(2).

The question is whether the complainant’s handicap is unrelated to his ability to perform the job in question.

In 1968 complainant suffered a subendocardial infarction (heart attack) while working as a roofer. He was hospitalized for about two weeks and then spent about three and one-half months recuperating. He tried to return to his roofing job, but because he experienced chest pains his doctor advised him to seek other employment. Over the following years, complainant worked briefly as an appliance salesman and managed a service station for about four years. He was continuously under the care of a cardiologist, Dr. Dygert, and was taking medication regularly.

In March or April 1974, complainant applied to petitioner for employment. He provided a letter from Dr. Dygert which summarized his medical history and physical condition. After a series of interviews, complainant was offered a position as a heavy appliance (refrigerators, washers, etc.) salesman, subject to a physical examination by petitioner’s company physician, Dr. Battalia.

Dr. Battalia has been employed by petitioner since 1955. His experience includes diagnosis of heart conditions. One of his duties is to be familiar with the work performed by petitioner’s employes in order to make any necessary health and safety recommendations. Dr. Battalia testified that he was quite familiar with the job of a heavy appliance salesman; that he had attended two such salesmen when they had cardiac incidents at one of petitioner’s stores; and that "Both cases [were] in a time of stress, straining.”

Based upon his examination of complainant, Dr. Battalia concluded complainant’s blood pressure was considerably above normal, that he had a "split first [heart] sound,” and that his right pedal pulses were reduced, indicating peripheral arterial disease. Complainant’s medical history since his 1968 infarction included frequent attacks of angina. Dr. Battalia’s findings led him to conclude that complainant would be unable to perform the work of a heavy appliance salesman without serious risk of another heart attack. Dr. Battalia rejected complainant only from employment as a heavy appliance salesman, not from other employment with petitioner.

Complainant then initiated this proceeding before the Bureau of Labor charging petitioner with unlawful discrimination within the meaning of ORS 659.425(1). At the hearing on this charge, complainant’s physician, Dr. Dygert, opined that complainant only faced a significant risk of another heart attack if he engaged in sustained strenuous labor, but was qualified to perform the job of heavy appliance salesman if it involved only occasional exertion. Dr. Dygert acknowledged that complainant frequently reported attacks of angina; he also noted hypothyroidism, which he conceded would produce an increase in the risk of heart attack.

Much evidence was presented at the hearing concerning the nature of a heavy appliance salesman’s duties. There was testimony that such salesmen must unpack and place heavy merchandise in displays, move and rearrange appliances weighing as much as 400 pounds, and carry or help carry such things as electronic ovens and air conditioners to customers’ vehicles. The Commissioner’s decision contains the following findings:

"* * * [T]he duties of appliance salespersons consist primarily of speaking with the public about possible purchases. Any moving of appliances would normally be handled by warehousepersons with sporadic shifting of appliances by salespersons * *

Although not responsive to the evidence presented, we interpret this to mean that the Commissioner found that the job would or might involve physical exertion.

Under ORS 659.400(2) the question becomes whether complainant’s heart condition was unrelated to his ability to perform the duties of a heavy appliance salesman.

The Commissioner interpreted the statute to require there be "a high probability of incapacitation” before petitioner could decline to hire complainant. We believe the Commissioner’s interpretation of the statute to be unwarranted. Assuming arguendo that a preexisting heart condition constitutes a physical handicap under ORS 659.400(2), we interpret the Act as providing that an employer may refuse to hire an applicant with such a "handicap” where there is a reasonable medical possibility that the applicant might, because of the extent of disability and the nature of the work, be unable to perform the work or could experience injury as a result of attempting to perform it. This is particularly true in the murky area of heart conditions — an area in which the workmen’s compensation cases which have come before us indicate that experienced physicians almost always disagree.

Even as so interpreted, we are still confronted with the conflicting opinions of Drs. Battalia and Dygert. Each doctor conceded that the other’s opinion was not untenable. The Commissioner perceived his role to be to decide which opinion was more persuasive. We find nothing in the Act which requires the Commissioner to make that difficult decision. We conclude that the proper rule, at least in heart-condition situations, is that where an employer requires a job applicant to undergo a medical examination by a licensed physician, and the physician renders a reasonable and good-faith opinion that the applicant’s condition is not compatible with the projected employment, the employer should not be held in violation of the Act for rejecting the applicant in reasonable and good-faith reliance on the advice of the physician.

We hold that as a matter of law Dr. Battalia’s diagnosis that complainant’s heart condition was incompatible with the work of a heavy appliance salesman was reasonable and rendered in good faith. We further hold that as a matter of law petitioner’s reliance on Dr. Battalia’s opinion in not hiring complainant as a heavy appliance salesman was reasonable and in good faith.

Reversed.