Anderson v. Upper Bucks County Area Vocational Technical School

CourtCommonwealth Court of Pennsylvania
Writing for the CourtROGERS; MENCER; BOWMAN
Citation30 Pa.Cmwlth. 103,373 A.2d 126
Decision Date05 May 1977
Parties, 20 Fair Empl.Prac.Cas. (BNA) 1411, 14 Empl. Prac. Dec. P 7716 Carole B. ANDERSON and Pennsylvania State Education Association, Dale Moyer, Uni-Serv. Representative v. UPPER BUCKS COUNTY AREA VOCATIONAL TECHNICAL SCHOOL, Appellant, Commonwealth of Pennsylvania, Pennsylvania Human Relations Commission, Party Appellee.

Page 126

373 A.2d 126
30 Pa.Cmwlth. 103, 20 Fair Empl.Prac.Cas. (BNA) 1411,
14 Empl. Prac. Dec. P 7716
Carole B. ANDERSON and Pennsylvania State Education
Association, Dale Moyer, Uni-Serv. Representative
v.
UPPER BUCKS COUNTY AREA VOCATIONAL TECHNICAL SCHOOL, Appellant,
Commonwealth of Pennsylvania, Pennsylvania Human Relations
Commission, Party Appellee.
Commonwealth Court of Pennsylvania.
Argued March 8, 1977.
Decided May 5, 1977.

Page 127

[30 Pa.Cmwlth. 104] John J. Hart, Power, Bowen & Valimont, Sellersville, for appellant.

John G. Wayman, [30 Pa.Cmwlth. 105] Walter P. Deforest, III, Peter D. Post, Scott F. Zimmerman, Pittsburgh, amicus curiae for appellant.

James D. Keeney, Asst. Atty. Gen., Sanford Kahn, General Counsel, Pennsylvania Human Relations Commission, Harrisburg, for appellee.

Alice M. Price, Susan C. Nicholas, Women's Law Project, Leonard M. Sagot, Philadelphia, amicus curiae for appellees.

Page 128

OPINION

ROGERS, Judge.

This is an appeal from an adjudication of the Pennsylvania Human Relations Commission holding that the appellant Upper Bucks County Area Vocational Technical School had discriminated against an employe because of her sex in violation of Section 5(a) of the Pennsylvania Human Relations Act (PHRA) 1, 43 P.s. § 955(a).

Carole B. Anderson, a teacher, asked the appellant School to apply her accumulated sick elave to the total time she was absent from her employment as a result of her pregnancy. 2 The appellant refused Anderson's request because a provision of the collective bargaining agreement between it and its teachers excluded from 'Sick Leave' any benefits for pregnancy. The pertinent parts of said provisions are:

'Sick Leave. In any school year whenever a professional or temporary professional employe is prevented by illness or accidental injury from following his or her occupation, the school district shall pay to said employe for each day of absence the full salary to which the employe may be entitled as if said employe were [30 Pa.Cmwlth. 106] actually engaged in the performance of duty for a period of ten days. Such leave shall be cumulative from year to year. No employe's salary shall be paid if the accidental injury is incurred while the employe is engaged in remunerative work unrelated to school duties. Additional days may be approved by the School Board as the exigencies of the case may warrant.

'Maternity Leave. All female employes who become pregnant are entitled to a period of childbirth leave from their duties in the School District pursuant to the following provisos;

e. All periods of childbirth leave shall be deemed leave without pay; during which period sick leave and/or other benefits will not accrue.' (Emphasis in original.)

Anderson filed a complaint with the Commission alleging that the appellant's refusal of sick leave benefits for her pregnancy was sexually based and that it violated Section 5(a) of the PHRA. Following unsuccessful efforts at conciliation, the parties entered into a stipulation of facts. The Commission thereupon decided that:

'2. Pregnancy-related disability is a temporary disability which must be treated in the same manner as any other temporary disability. Since pregnancy-related disability is a disability common only to women, to treat it differently from other disability by extending inferior compensation, terms, conditions and privileges of employment constitute sex discrimination in violation of Section 5(a) of the Pennsylvania Human Relations Act.'

[30 Pa.Cmwlth. 107] and ordered the appellant to pay Anderson the amount of money she would have received if her request for sick leave had been granted. The School has appealed.

Our review of appeals of a Commission order is limited to determining whether they are in accordance with law; whether substantial evidence supports findings of facts necessary to sustain the order; and whether the Commission properly exercised its discretion. Leechburg Area School District v. Human Relations Commission, 19 Pa.Cmwlth. 614, 339 A.2d 850 (1975). The facts having been stipulated, our duty is only to decide whether the appellant's sick leave policy as it applies to pregnancy is an unlawful discriminatory practice with respect to the privileges of Anderson's employment.

Page 129

Section 5(a) of the PHRA, 43 P.S. § 955(a) pertinently declares that:

'It shall be an unlawful discriminatory practice, unless based upon a bona fide occupational qualification . . .

(a) For any employer because of the race, color, religious creed, ancestry, age, Sex, national origin or non-job related handicap or disability of any individual to refuse to hire or employ, or to bar or to discharge from employment such individual, or To otherwise Discriminate against such individual with respect to compensation, hire, tenure, terms, conditions or privileges of employment, if the individual is the best able and most competent to perform the service required. The provision of this paragraph shall not apply, to (1) termination of employment because of the terms or conditions of any bona fide retirement or pension plan, (2) operation of the terms or conditions of any bona fide retirement or pension plan which have the effect of a minimum service requirement, (3) [30 Pa.Cmwlth. 108] operation of the terms or conditions of any bona fide group or employe insurance plan.' (Emphasis added.)

We first observe that it has been decided that the exclusion of disability from pregnancy from the coverage of a State employment compensation disability insurance program does not amount to 'invidious discrimination' under the Equal Protection Clause but that such an exclusion is a rationally supportable stopping point for benefits. Geduldig v. Aiello, 417 U.S. 484, 94 S.Ct. 2485, 41 L.Ed.2d 256 (1974). We are, of course, also mindful that the United States Supreme Court has recently held, with heavy reliance on Aiello, that such an exclusion in a private employer's disability plan is not violative of Section 702(a)(1) of Title VII of the Federal Civil Rights Act of 1964, 42 U.S.C. § 2000e--2(a)(1). 3 General Electric Co. v. Gilbert, 429 U.S. 125, 97 S.Ct. 401, 50 L.Ed.2d 343 (1976). We are not constrained to reach in this case the result reached in either Aiello or Gilbert.

Discriminatory practices not constitutionally prohibited may nevertheless be statutorily proscribed. The instant case is one of statutory interpretation, not one for constitutional analysis. Union Free School District No. 6 v. New York State Human Rights Appeal Board, 35 N.Y.2d 371, 362 N.Y.S.2d 139, 320 N.E.2d 859 (1974). This Court is not compelled by Gilbert's construction of Title VII of the Federal Civil Rights Act of 1964 to construe the Pennsylvania Human Relations Act in the same fashion. Eisenstadt [30 Pa.Cmwlth. 109] v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972); Commonwealth of Pennsylvania v. First School, --- Pa. ---, 370 A.2d 702 (filed February 28, 1977). Congress has expressly provided that State statutes defining sex discrimination more comprehensively than the Civil Rights Act of 1964 shall not be preempted or superseded by Title VII of the Civil Rights Act of 1964. 4 42 U.S.C. § 2000e--7; 42 U.S.C. § 2000h--4.

In addressing the challenge, based on statute, to the disability plan in Gilbert, the Supreme Court adopted the same rationales it used in Aiello in deciding whether the plan there under consideration offended the Equal Protection Clause; to wit, (1) that the exclusion of pregnancy related disability is not a prima facie case of sex or gender classification, but rather a disability classification, and (2) that the complainant, Gilbert, failed to carry the additional burden of proving that the effect of this facially

Page 130

neutral classification was to discriminate against members of the female sex. 5 In interpreting the anti-discrimination provision of Section 5(a) of the PHRA, we disagree, [30 Pa.Cmwlth. 110] as did all Pre-Gilbert Federal Circuit Court opinions addressing Title VII issues, with the premise that the exclusion of pregnancy related disability is not sex classification. 6 We believe that since pregnancy is unique to women, a disability plan which expressly denies benefits for disability arising out of pregnancy is one which discriminates against women employes because of their sex.

Turning now to Pennsylvania law, we find ample support for our belief just stated in cases holding that pregnancy based discrimination constitutes sex discrimination proscribed by Section 5(a) of the PHRA. In Cerra v. East Stroudsburg Area School District, 450 Pa. 207, 299 A.2d 277 (1973), the Supreme Court of Pennsylvania held that a school district regulation requiring pregnant teachers to resign at the end of their fifth month of pregnancy was contrary to Section 5(a) of PHRA. Mr. Justice (now Chief Justice) Eagen there wrote:

'Mrs. Cerra's contract was terminated absolutely, solely because of pregnancy. She was not [30 Pa.Cmwlth. 111] allowed to resume her duties after the pregnancy ended, even though she was physically and mentally competent. There was no evidence that the quality of her services as a teacher was or would be affected as a result of the pregnancy. Male teachers, who might well be temporarily disabled from a multitude of illnesses, have not and will not be so harshly treated. In short, Mrs. Cerra and other pregnant women are singled out and placed in a class to their disadvantage. They are discharged from their employment on the basis of a physical condition peculiar to their sex. This is sex...

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38 practice notes
  • At & T Corp. v. Hulteen, No. 07–543.
    • United States
    • United States Supreme Court
    • May 18, 2009
    ...41 N.Y.2d 84, 390 N.Y.S.2d 884, 359 N.E.2d 393 (1976); Anderson v. Upper Bucks Cty. Area Vocational Technical School, 30 Pa. Commw. 103, 373 A.2d 126 (1977); Quaker Oats Co. v. Cedar Rapids Human Rights Comm'n, 268 N.W.2d 862 (Iowa 1978); Massachusetts Elec. Co. v. Massachusetts Comm'n Agai......
  • AT & T Corp. v. Hulteen, No. 07–543.
    • United States
    • United States Supreme Court
    • May 18, 2009
    ...41 N.Y.2d 84, 390 N.Y.S.2d 884, 359 N.E.2d 393 (1976) ; Anderson v. Upper Bucks Cty. Area Vocational Technical School, 30 Pa. Commw. 103, 373 A.2d 126 (1977) ; Quaker Oats Co. v. Cedar Rapids Human Rights Comm'n, 268 N.W.2d 862 (Iowa 1978) ; Massachusetts Elec. Co. v. Massachusetts Comm'n A......
  • At & T Corp. v. Hulteen, No. 07–543.
    • United States
    • United States Supreme Court
    • May 18, 2009
    ...41 N.Y.2d 84, 390 N.Y.S.2d 884, 359 N.E.2d 393 (1976); Anderson v. Upper Bucks Cty. Area Vocational Technical School, 30 Pa. Commw. 103, 373 A.2d 126 (1977); Quaker Oats Co. v. Cedar Rapids Human Rights Comm'n, 268 N.W.2d 862 (Iowa 1978); Massachusetts Elec. Co. v. Massachusetts Comm'n Agai......
  • Goodyear Tire & Rubber Co. v. Department of Industry, Labor and Human Relations, No. 77-650
    • United States
    • Court of Appeals of Wisconsin
    • November 22, 1978
    ...Gas v. N. Y. State H. R. A. Bd., 41 N.Y.2d 84, 390 N.Y.S.2d 884, 359 N.E.2d 393 (1976); Anderson v. Upper Bucks Cty. Area V. T. School, 30 Pa.Cmwlth. 103, 373 A.2d 126 (1977), Appeal denied, No. 3055 (Pa.S.Ct. May 2, 1978); Page 792 Contra, Narragansett Elec. v. R. I. Comm'n. for Hum. R., 3......
  • Request a trial to view additional results
38 cases
  • At & T Corp. v. Hulteen, No. 07–543.
    • United States
    • United States Supreme Court
    • May 18, 2009
    ...41 N.Y.2d 84, 390 N.Y.S.2d 884, 359 N.E.2d 393 (1976); Anderson v. Upper Bucks Cty. Area Vocational Technical School, 30 Pa. Commw. 103, 373 A.2d 126 (1977); Quaker Oats Co. v. Cedar Rapids Human Rights Comm'n, 268 N.W.2d 862 (Iowa 1978); Massachusetts Elec. Co. v. Massachusetts Comm'n Agai......
  • AT & T Corp. v. Hulteen, No. 07–543.
    • United States
    • United States Supreme Court
    • May 18, 2009
    ...41 N.Y.2d 84, 390 N.Y.S.2d 884, 359 N.E.2d 393 (1976) ; Anderson v. Upper Bucks Cty. Area Vocational Technical School, 30 Pa. Commw. 103, 373 A.2d 126 (1977) ; Quaker Oats Co. v. Cedar Rapids Human Rights Comm'n, 268 N.W.2d 862 (Iowa 1978) ; Massachusetts Elec. Co. v. Massachusetts Comm'n A......
  • At & T Corp. v. Hulteen, No. 07–543.
    • United States
    • United States Supreme Court
    • May 18, 2009
    ...41 N.Y.2d 84, 390 N.Y.S.2d 884, 359 N.E.2d 393 (1976); Anderson v. Upper Bucks Cty. Area Vocational Technical School, 30 Pa. Commw. 103, 373 A.2d 126 (1977); Quaker Oats Co. v. Cedar Rapids Human Rights Comm'n, 268 N.W.2d 862 (Iowa 1978); Massachusetts Elec. Co. v. Massachusetts Comm'n Agai......
  • Goodyear Tire & Rubber Co. v. Department of Industry, Labor and Human Relations, No. 77-650
    • United States
    • Court of Appeals of Wisconsin
    • November 22, 1978
    ...Gas v. N. Y. State H. R. A. Bd., 41 N.Y.2d 84, 390 N.Y.S.2d 884, 359 N.E.2d 393 (1976); Anderson v. Upper Bucks Cty. Area V. T. School, 30 Pa.Cmwlth. 103, 373 A.2d 126 (1977), Appeal denied, No. 3055 (Pa.S.Ct. May 2, 1978); Page 792 Contra, Narragansett Elec. v. R. I. Comm'n. for Hum. R., 3......
  • Request a trial to view additional results

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