dissenting.
I respectfully dissent. The facts as found by the Indiana Civil Rights Commission itself clearly call for recognition of the "good faith" defense proffered by SIGECO, as is the case in Pennsylvania (see Action Industries, Inc. v. Commonwealth of Pennsylvania, cited at note 8 of the majority opinion). The legislature did not intend employers who seek only to exercise their legal rights under the Civil Rights Law should be penalized for doing so, as SIGECO was in this case.
Let us first put the Commission's facts in order. Simply stated, Leslie is 5 feet 1 inch tall and weighs 124 pounds. She applied for another job with SIGECO which was unavailable but was told there might be an opening for a meter man. She applied for it, passed some intellectual tests, and took a routine physical required by the company's pre-employment procedures. The meter man job involved heavy lifting on a daily basis. X-rays taken as part of the physical examination showed Leslie suffered from sacralization of her L-5 vertebra, a lower back condition. Leslie's expert, an orthopedist, later confirmed that diagnosis. SIGECO's physician, believing Leslie's back condition disqualified her for a position requiring heavy lifting, reported to SIGECO Leslie was "unfit" for the employment she sought.1 It was only at that point SIGECO refused to employ Leslie. The parties stipulated from the outset of this litigation SIGECO would have employed Leslie as a meter man if it had not received the "unfit" report from its physician. That stipulation standing alone puts an end to the discrimination question in my opinion, but there is more.
SIGECO had a statutory right to initially refuse employment to Leslie based on its physician's report. IND.CODE 22-9-1-18 at that time provided:
See. 18. (a) The prohibition against discrimination in employment because of handicap does not apply to failure of an employer to employ or to retain as an employee any person who because of a handicap is physically or otherwise unable to efficiently and safely perform, at *542the standards set by the employer, the duties required in that job....
That language does not, however, render employers insurers of the correctness of their experts' opinions. I believe the "good faith" defense SIGECO here asserts is meritorious and should be applied to relieve it from the horrendous penalties assessed by the Commission for employment discrimination which factually did not exist.
If Leslie is faced with a dilemma, ponder the "Catch 22" future employers will face if the "good faith" defense is rejected in Indiana. To avoid the formidable penalties future Commissions may inflict in handicapped discrimination cases, prudence would dictate future employers hire anyone who applies for a vacant job, even if its expert says the applicant is physically unqualified to do the work required. However, if the employer does so, he may face a worker's compensation claim for the very on-the-job injuries its expert predicts will occur if the applicant is hired to do the job for which he is physically unfit. Certainly the legislature did not intend such an incongruous result.
In my opinion the Commission's determination SIGECO's factually innocent conduct was somehow discriminatory from the outset just because its physician's initial opinion was later contested and proven wrong is ludicrous. Neither the law nor the Civil Rights Act sanction the Commission to retroactively apply that finding to make SIGECO's lawful conduct unlawfully discriminatory from the beginning, then deem itself authorized to impose confiscatory penalties for unlawful employment discrimination. The Act targets discrimination in fact, not discrimination resulting from convoluted reasoning. The Commission here has reached absolutely the wrong result and its reversal by the trial court was unqualifiedly justified.
I believe the rule in such cases should be: if a physical examination engenders a qualified expert's opinion an applicant for employment is physically unfit to perform the work required and the employer in good faith refuses to hire the applicant for that reason, the employer has a good defense to a later action, even though the initial expert's opinion is later proven wrong. To hold otherwise endorses confiscatory penalization where none is justified.
For those reasons, I would affirm the trial court.
. Leslie's expert disagreed, however, believing that condition did not physically disqualify Leslie. That issue, namely, whether Leslie's back condition rendered her unfit for the job she wanted, was the issue tried and determined by the Commission several years after the facts here recited had transpired.