(dissenting).
I. The majority concedes, as it must, that persons other than employers may be held hable under Iowa Code section 216.6(l)(a). The statute is abundantly clear on this point:
1. It shall be an unfair or discriminatory practice for any:
a. Person to refuse to ... classify, or refer for employment ... any applicant for employment ... because of the ... sex ... of such applicant....
Iowa Code § 216.6(l)(a). A “person” includes, among others, “one or more individuals ... [and] corporations.” Iowa Code § 216.2(11). Sahai and the clinic are “persons” within the meaning of this definition.
For the purposes of this statute “any classification which relies on pregnancy as the determinative criteria is a distinction based on sex.” Quaker Oats Co. v. Cedar Rapids Human Rights Comm’n, 268 N.W.2d 862, 867 (Iowa 1978) (quoting Massachusetts Elec. Co. v. Massachusetts Comm’n Against Discrimination, 375 Mass. 160, 166-168, 375 N.E.2d 1192, 1198-99 (1978)). Simply put, pregnancy discrimination is equivalent to sex discrimination. Id.; Cedar Rapids Community Sch. Dist. v. Parr, 227 N.W.2d 486, 493 (Iowa 1975).
Davies applied for a job with Nissen. Nis-sen hired Davies on condition that she pass the physical examination and drug test. Clearly, Davies was an applicant for employment and Nissen was a prospective employer.
The commission found that Sahai refused to classify or refer Davies for employment because of her pregnancy, a discriminatory criterion. There is substantial record evidence to support this finding through Sahai’s own testimony:
Q. In fact, you do have a blanket policy for permitting pregnant women to work on the assembly line, do you not? A. Well, you’re correct. For the assembly line, yes, there is. If you want to call that a blanket policy, yes, I’ll give in to that.
Q. It’s your policy not to permit pregnant women to work on the assembly line for Nissen Company. That is your policy, isn’t that correct? A. That’s not correct. The policy is not to newly hire women who are pregnant for assembly line work.
Q. So, in essence, though when you are approving people for their pre-employment physical, that would be a newly hired person? A. That’s correct.
Q. You would not approve someone for hire on the assembly line who is pregnant? A. That’s correct.
Q. And the sole reason for that is the pregnancy, isn’t that right, Doctor? A. And assembly line work.
Sahai based his policy on medical knowledge that anyone working on an assembly line had a higher likelihood of developing carpal tunnel syndrome and that pregnancy exacerbates this malady. The policy was also based on his knowledge that assembly-line work exacerbates back pain and joint pain associated with pregnancy.
As the majority points out, Sahai did a thorough physical examination. Following that examination, Sahai concluded Davies was a “healthy pregnant woman” who had *904none of the maladies to which Sahai felt she might be prone in assembly-line work.
Nevertheless, Sahai told Davies he was going to recommend that Nissen not hire her. True to his word, Sahai telephoned Hakes, the individual who had interviewed Davies, and recommended against hiring Davies for assembly-line work because she was pregnant. Sahai also sent Nissen a physical exam record he had filled out on the day of the examination. To the question, “Approved for work?” on the form, Sahai responded, “No.”
This evidence supports the commission’s finding that Sahai refused to refer Davies for employment because she was pregnant and not because she was unable to do assembly-line work.
The majority puts a different spin on this evidence, stating Sahai’s refusal to approve Davies for work was not discriminatory because his role was merely “advisory.” But the commission found to the contrary and, as already illustrated, there is substantial evidence in the record to support this finding. The majority must engage in a de novo review to justify its conclusion that Sahai’s recommendation was mere advice, a standard of review that ⅛ clearly inappropriate in this agency appeal. See Norland v. Iowa Dep’t of Job Serv., 412 N.W.2d 904, 908 (Iowa 1987) (holding that agency findings are binding on appeal unless a contrary result is demanded as a matter of law).
The crux of the majority opinion, however, is based on a mixed motivation theory. The majority states that Sahai’s recommendation was based on two factors: Davies’ physical well-being (a discriminatory criterion because based solely on Davies’ pregnancy) and her ability to do the work (a nondiscriminatory criterion). The majority attempts to save Sahai from liability by putting the blame on Nissen for not asking the right questions: whether the recommendation was based on Sahai’s beliefs concerning Davies’ ability to perform assembly-line work or upon potential physical harm to her from doing that work because she was pregnant.
I think this reasoning is flawed for several reasons. First, what motivated Sahai’s recommendation is a fact question. The commission found that the recommendation was based on a stereotypic and discriminatory belief that pregnant women should not do assembly-line work. The record contains substantial evidence to support this finding, a finding that is binding on us on appeal.
Second, the reasoning runs counter to the mixed motivation rule fashioned in Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989). Under this rule, the employee must first establish by a preponderance of the evidence that a discriminatory reason played a part in the employment decision. Price Waterhouse, 490 U.S. at 244, 109 S.Ct. at 1787,104 L.Ed.2d at 285. The defendant’s burden at this point “is most appropriately deemed an affirmative defense” rather than a shift in the burden of proof. Id. at 252, 109 S.Ct. at 1792, 104 L.Ed.2d at 289. If the defendant wishes to prevail, it must prove by a preponderance of the evidence that “its legitimate reason, standing alone, would have induced it to make the same decision.” Id.
Stated in another way,
[w]hen a plaintiff ... proves that [a discriminatory reason] played a motivating part in an employment decision, the defendant may avoid a finding of liability only by proving by a preponderance of the evidence that it would have made the same decision even if it had not taken the [discriminatory reason] into account.
Id. at 258, 109 S.Ct. at 1795, 104 L.Ed.2d at 293. This approach is justified in mixed motivation cases because the defendant “has created uncertainty as to causation by knowingly giving substantial weight to an impermissible criterion.” Id. at 261, 109 S.Ct. at 1796, 104 L.Ed.2d at 295 (O’Connor, Justice, concurring).
Assuming for purposes of argument that Sahai had a mixed motivation, as the majority suggests, he still loses because he made no showing before the commission that he would have made the same recommendation even if he had not taken the discriminatory reason into account. The majority turns the mixed motivation rule on its head because it shifts the burden to Davies to prove what substantially motivated Sahai’s recommendation.
*905Even if the mixed motivation rule is not applicable, I think the result should be the same. The critical question is whether the discriminatory reason played a substantial part in Sahai’s recommendation. Again, this is a fact question and inheres in the commission’s finding that Sahai refused to classify or refer Davies for employment because of her pregnancy, a discriminatory criterion.
II. I think the commission’s decision is also supported by a second theory the commission relied on: the “control over employment opportunities” theory of liability. The commission borrowed this theory from federal cases interpreting Title VII.
This theory is based on the rule that parties other than a plaintiffs actual potential employer can be liable under Title VII if such parties control the plaintiffs access to employment opportunities and interfere with that access for discriminatory reasons. The seminal case is Sibley Memorial Hospital v. Wilson, 488 F.2d 1338 (D.C.Cir.1973).
The rule is based on a broad interpretation of Title VII. Pelech v. Klaff-Joss, LP, 815 F.Supp. 260, 262 (N.D.Ill.1993). Title VII— the counterpart to our own employment discrimination statute — provides:
(a) It shall be an unlawful employment practice for an employer—
(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment because of such individual’s race, color, religion, sex or national origin.
42 U.S.C. § 2000e-2(a)(l).
The interpretation that Title VII encompasses more than the traditional employer-employee relationship derives from the statute’s use of the term “any individual,” instead of employee. Pelech, 815 F.Supp. at 262-63. This interpretation is consistent with the purpose of Title VII:
[T]he Congressional objective in Title VII is “plain from the language of the statute,” and that is “to achieve equality of employment opportunities. ...” In prohibiting discrimination in employment on the basis of sex, “one of Congress’ main goals was to provide equal access to the job market for both men and women.” Control over access to the job market may reside, depending upon the circumstances of the case in a labor organization, an employment agency, or an employer as defined in Title VII; and it would appear that Congress has determined to prohibit each of these from exerting any power it may have to foreclose, on [invidious] grounds, access by any individual to employment opportunities otherwise available to him. To permit a covered employer to exploit circumstances peculiarly affording it the capability of dis-criminatorily interfering with an individual’s employment opportunities with another employer, while it could not do so with respect to employment in its own service would be to condone continued use of the very criteria for employment that Congress has prohibited.
A fair reading of the Act in the light of its stated purposes precludes such re-sult_
The Act defines “employee” as “an individual employed by an employer,” but nowhere are there words of limitation that restrict references in the Act to “any individual” as comprehending only an employee of an employer. Nor is there any good reason to confine the meaning of “any individual” to include only former employees and applicants for employment, in addition to present employees. Those words should, therefore, be given their ordinary meaning so long as that meaning does not conflict with the manifest policy of the Act.
Sibley, 488 F.2d at 1340-41.
Liability under the rule turns on whether the defendant had control over the plaintiffs access to employment opportunities. On the control issue, the proper focus is on whether the defendant had the power to affect the plaintiffs access to employment opportunities and interfered with that access for discriminatory reasons. Mitchell v. Tenney, 650 F.Supp. 703, 706 (N.D.Ill.1986) (holding that analysis should focus on whether defendant had the power to affect plaintiffs access to employment opportunities in a discriminatory manner).
*906The commission borrowed this “control over employment opportunities” theory of liability in interpreting our own employment discrimination statute, and I think properly so. Tailored to Iowa Code section 216.6(l)(a) and the facts of this case, the claim for discrimination would be phrased this way:
A person who controls an applicant’s access to employment opportunities with a third party and who refuses to classify or refer the applicant for employment with the third party because of sex is liable to the applicant.
Under the “control over employment opportunities” theory, our focus should be on whether Sahai had the power to affect, that is, influence Nissen’s decision to hire Davies. The factual scenario in Association of Mexican-American Educators v. California, 836 F.Supp. 1534 (N.D.Cal.1993), illustrates this point. In this case three associations and fifteen individuals brought a class action against the State of California and the California Commission on Teacher Credentialing (teaching commission). The lawsuit, premised in part on a violation of Title VII, challenged the use of the State’s basic educational skills test (test) as a requirement for certification to teach in California public schools. The plaintiffs challenged the test requirement on the grounds it had a disparate impact on racial minorities.
Among other grounds for their summary judgment motion, the State and the teaching commission urged Title VII did not apply because local school districts, rather than the State and the teaching commission, directly employed the plaintiffs. The pivotal question was whether the State and the teaching commission, the entities responsible for the test requirement, could nevertheless be held liable under Title VII “because of the obstacle they placed in plaintiffs’ path to employment” with the school districts. Id. at 1550-51. Relying on Sibley, the court held against the State and the teaching commission, stating significantly:
There is no question but that under Sibley, defendants cannot escape Title VII liability solely because they are not plaintiffs’ employers. While defendants are correct that passage of the [test] does not guarantee a job (a successful applicant must be hired by the local school district), passing the test is the sine qua non of employment in California’s public schools.
Id. at 1551.
The school districts had the ultimate say on whether the plaintiffs would be hired. Passing the test still did not guarantee a job. Nevertheless, the nonemployers (the State and the teaching commission) could incur Title VII liability because they required the plaintiffs (the applicants) to pass a discriminatory test before the school districts (the potential employers) could even consider the plaintiffs for employment. In short, the State and the teaching commission had the power to affect the plaintiffs’ access to employment opportunities with the districts because passing the test was a necessary condition of employment with the districts.
Here, Davies was in a stronger position than the plaintiffs were in Association of Mexican-Ameñcan Educators. Davies had the job, but there was one catch: She had to pass Sahai’s physical examination and receive a favorable recommendation from him. Sa-hai had the power to affect Davies’ conditional employment because passing the physical and receiving a favorable recommendation were the necessary conditions of Davies’ employment with Nissen.
There is substantial record evidence to support the commission’s findings that Sahai (1) had the power to affect Davies’ access to employment opportunities with Nissen, and (2) interfered with that access for discriminatory reasons.
Hakes told Davies in her initial interview that she was qualified and offered her the job conditioned on her passing the physical. Sahai recommended that Nissen not hire her because she was pregnant. Based on Sahai’s recommendation, Nissen did not hire Davies. On this last point, a commission investigator testified about her conversations with Hakes regarding Sahai’s recommendations in general and his recommendation as to Davies in particular. Hakes unequivocally attributed Nissen’s refusal to hire Davies directly to Sahai’s recommendation:
*907Q. In your questioning of Mr. Hakes, did you inquire of him as to why he did not hire or Nissen Company did not hire Ms. Davies? A. Yes.
Q. What was his response to you? A. He said that Dr. Sahai’s decision could not be overruled. It was Dr. Sahai that recommended Ms. Davies not be hired because of her pregnancy. As far as he was concerned, she was qualified.
Q. Did you ask Mr. Hakes what role he played in the decision concerning Ms. Davies versus the role of Dr. Sahai in the decision? A. Mr. Hakes hires for the production line. He interviews persons sent from Job Service. Initially he would determine if they are qualified, then he sends the person to get a physical, but Dr. Sahai determines whether or not they will be hired based on the physical, and Mr. Hakes said he could not overrule the doctor’s decision.
Q. Did Mr. Hakes indicate whether he followed the doctor’s recommendation in Ms. Davies’ case? A. Yes, he did.
The majority notes “[i]t is perhaps unfortunate that the form of Dr. Sahai’s written opinion was a conelusory recommendation as to whether Davies should be hired.” The majority, of course, is again resorting to a de novo review and insisting that Sahai in truth did not recommend against hiring Davies but was only giving advice. The testimony elicited from the commission investigator substantiates the commission’s finding that Sahai did in fact recommend and determine whether an applicant should be hired. Nissen blindly accepted Sahai’s recommendation, and it made no difference to the company what motivated that recommendation.
The primary reason, however, for the majority’s rejection of the “control over employment opportunities” cases appears to be that these cases did not involve “the exercise of independent professional judgment.” By relying on this distinction, the majority has created an exception to our civil rights law for professionals giving opinions within them area of expertise. The majority justifies its position by noting “an employer should be free to seek out expert medical opinion.” While this may be true, it is no justification for concluding the expert is free to discriminate simply because he or she does so under the guise of “professional judgment.” The immunity created by the majority has no support in the broad language of section 216.6(l)(a) or the purposes underlying discrimination laws.
III. Sahai suggests that if a physician can be held liable under the circumstances of this case, the physician will be placed in a dilemma. The dilemma, he claims, is having to choose between (1) violating a physician’s Hippocratic oath not to knowingly harm a patient or (2) facing discrimination allegations. By the tone of its opinion, the majority implicitly agrees.
I see no such dilemma. Nissen employed Sahai to give a medical opinion on Davies’ fitness to work. Davies was clearly able to perform assembly-line work when Sahai examined her, and Sahai should have approved her for this work. Such an opinion would not have prevented Sahai from honoring his Hippocratic oath. All Sahai had to do to comply with both his oath and the law was to (1) warn Davies of the increased risks associated with a pregnant woman doing assembly-line work, (2) advise her against taking the job because of these risks, and (3) leave the final decision to her. Instead, he made the decision for her.
In essence, Sahai was like a gatekeeper to job opportunities at Nissen. A successful physical and favorable recommendation constituted the entry way to those opportunities. In Davies’ case, passage was conditioned on a discriminatory criterion, nonpregnancy.
In my opinion, Sahai’s decision not to classify Davies as fit for employment solely because she was pregnant violated the Iowa Civil Rights Act. The commission correctly decided this ease, and I would affirm.
NEUMAN, ANDREASEN, and TERNUS, JJ., join this dissent.