Leechburg Area School Dist. v. Com., Human Relations Commission

• Decision Date: 11 June 1975
• Parties: , 16 Fair Empl.Prac.Cas. (BNA) 1333, 11 Empl. Prac. Dec. P 10,719 LEECHBURG AREA SCHOOL DISTRICT, Appellant, v. COMMONWEALTH of Pennsylvania, Pennsylvania HUMAN RELATIONS COMMISSION, Appellee.
• Court: Pennsylvania Commonwealth Court

Page 850

339 A.2d 850

19 Pa.Cmwlth. 614, 16 Fair Empl.Prac.Cas. (BNA) 1333,

11 Empl. Prac. Dec. P 10,719

LEECHBURG AREA SCHOOL DISTRICT, Appellant, v. COMMONWEALTH of Pennsylvania, Pennsylvania HUMAN RELATIONS

COMMISSION, Appellee.

Commonwealth Court of Pennsylvania.

Argued March 5, 1975.

Decided June 11, 1975.

J. Raymond Ambrose, Jr., Donetta W. Ambrose, New Kensington, for appellant.

Jay Harris Feldstein, Pittsburgh, for appellee.

Before BOWMAN, PresidentJudge, and CRUMLISH, Jr., KRAMER, WILKINSON, MENCER, ROGERS and BLATT, JJ.

OPINION

CRUMLISH, Jr., Judge.

On July 21, 1972, the Pennsylvania Human Relations Commissin (Commission) initiated a complaint against the Leechburg Area School District (Appellant) alleging that certain provisions of the Appellant's maternity leave policy discriminated against females in violation of Section 5(a) of the Pennsylvania Human Relations Act, Act of October 27, 1955, P.L. 744, As amended, 43 P.S. § 955(a) (Supp.1974--1975) (the Act). ¹ The Commission objected to those provisions of the Appellant's maternity leave policy which required a teacher to begin a maternity leave Without pay at the end of the sixth month of pregnancy; limited such leave to married pregnant teachers; and required a teacher to teach at least one year between leaves. Following a pre-hearing conference at which attempts at conciliation failed, the parties entered into a stipulation of facts upon which the Commission would base its decision. On April 30, 1974, the Commission found the above provisions to be violative of Section 5(a) of the Act and ordered Appellant to eliminate these provisions and formulate new policies in conformity with regulations of the Commission.

Hence this appeal.

Our review in appeals of this nature is limited to determining whether the Commission order is in accordance with law, and whether the findings of fact necessary to sustain the order are supported by substantial evidence. J. Howard Brandt, Inc. v. Pennsylvania Human Relations Commission, 15 Pa.Cmwlth. 123, 324 A.2d 840 (1974). As the facts have been stipulated, we must only decide whether Appellant's maternity leave policies constitute unlawful sex discrimination in the terms and conditions of employment under Section 5(a) of the Act.

Appellant concedes that its requirements that a teacher begin maternity leave at the end of her sixth month of pregnancy cannot stand in the face of the Supreme Court's decision in Cleveland Board of Education v. LaFleur, 414 U.S. 632, 94 S.Ct. 791, 39 L.Ed.2d 52 (1974), which held respective four and five month prenatal leave policies of two school boards to be violative of due process. Controlling of the instant appeal, however, is our recent decision in Freeport Area School District v. Pennsylvania Human Relations Commission, --- Pa.Cmwlth. ---, 335 A.2d 873 (1975), where this Court held that a three and a half month mandatory prenatal leave policy violated Section 5(a). President Judge Bowman, writing for the Court, stated:

'The instant case, insofar as it involves prenatal terminations of active employment, is controlled in principle by Cerra v. East Stroudsburg Area School District, 450 Pa. 207, 299 A.2d 277 (1973), where our Supreme Court held that the dismissal of a school teacher for failure to resign at the end of the fifth month of her pregnancy violated section 5(a), writing:

'. . . Mrs. Cerra's contract was terminated absolutely, solely because of pregnancy . . .. 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. There are discharged from their employment on the basis of a physical condition peculiar to their sex. This is sex discrimination pure and simple.' 450 Pa. at 213, 299 A.2d at 280.' --- Pa.Cmwlth. at ---, 335 A.2d at 877.

We have considerably more difficulty with the Commission's holding that the limitation of maternity leave to married teachers amounts to Sex discrimination under Section 5(a). Although Appellant apparently concedes this point by limiting its argument to a justification of the discriminatory impact of the policy on unmarried pregnant teachers as a necessary 'bona fide occupational qualification', we will briefly address the issue because of its novelty and its obvious centrality to finding of a violation of Section 5(a).

At first blush, the limitation of maternity leave eligibility to married teachers would appear to be discrimination in the employment relationship on the basis of marital status rather than sex. Discrimination based upon marital status Per se is not, of course, prohibited by Section 5(a). Whether such a classification would contravene the requirements of substantive due process or equal protection are questions which are not now before us. Cf. Andrews v. Drew Municipal Separate School District, 507 F.2d 611 (5th Cir. (1975). Although an employer may adopt an employment practice which differentiates between employees or prospective employees on the basis of their marital status, the standard adopted must be applied equally to both males and females to avoid the charge of sex discrimination. See Phillips v. Marietta Corp., 400 U.S. 542, 91 S.Ct. 496, 27 L.Ed.2d 613 (1971); Jurinko v. Edwin L. Wiegand Co., 477 F.2d 1038 (3rd Cir. 1973), Vacated on other grounds, 414 U.S. 970, 94 S.Ct. 293, 38 L.Ed.2d 214 (1974); Sprogis v. United Air Lines, Inc., 444 F.2d 1194 (7th Cir. 1971), Cert. denied, 404 U.S. 991, 92 S.Ct. 536, 30 L.Ed.2d 543 (1971). ² The underlying basis of Cerra v. East Stroudsburg Area School District, supra, and Freeport Area School District v. Pennsylvania Human Relations Commission, supra, is that pregnancy is a physical disability, though naturally limited to the female sex, which may not be treated differently from other long-term physical disabilities suffered by all employees. In the instant case, Appellant's policy of limiting maternity leave to married teachers, although facially differentiating only between married and unmarried female teachers, has the effect of creating a condition precedent to the eligibility of an employee for disability leave which must only be met by female teachers, and, as such, constitutes sex discrimination under Section 5(a). 'The effect of the statute is not to be diluted because discrimination adversely affects only a portion of the protected class. Discrimination is not to be tolerated under the guise of physical properties possessed by one sex . . . or through the unequal application of a seemingly neutral company policy.' Sprogis v. United Air Lines, Inc., supra, 444 F.2d at 1198.

Additionally, the instant policy discriminates against females if its laudatory purpose, as suggested by Appellant, is to insure the moral qualifications of public school teachers. The effect of a denial of maternity leave to an unwed pregnant female teacher is to terminate absolutely her employment. In this sense, the policy functions as a penalty. Yet, there is no evidence that the Appellant has adopted a mandatory termination policy for unwed male teachers who have fathered illegitimate children or have otherwise participated in extramarital sex. If the classification was intended to discourage what Appellant perceived to be immoral conduct, the brunt of its policy is placed solely upon unmarried female teachers due to the obvious physiological visibility of their pregnant condition, and this amounts to sex discrimination. See Doe v. Osteopathic Hospital of Wichita, Inc., 333 F.Supp. 1357 (D.Kan.1971); Equal Employment Opportunities Commission Decision No. 71--562, CCH, EEOC Decision 6184 (1970).

Having determined Appellant's limitation of maternity leave to married pregnant teachers to constitute sex discrimination under Section 5(a), we find without merit Appellant's contention that such a classification is supported by a bona fide occupational qualification (BFOQ), i.e., that a school has the obligation of maintaining the moral tenor of the educational environment which is best accomplished by discouraging unmarried teachers from becoming pregnant. In this respect, Appellant argues that the standard for judging the validity of its 'married-only' maternity leave policy is 'whether this policy creates an arbitrary or unreasonable classification wholly unrelated to the objective sought to be advanced by the school district in adopting it.' The law is clear, however, that the exemption provided by a BFOQ is to be narrowly construed, and an employer asserting a BFOQ has the burden of proving that he has a Factual basis for believing that all or substantially all of the discriminated against class would be unable to satisfactorily perform the duties of the job involved. Philadelphia v. Human Relations Commission, supra; Pittsburgh Press Employment Advertising Discrimination Appeal, 4 Pa.Cmwlth. 448, 287 A.2d 161 (1972), Newmon v. Delta Air Lines, Inc., 374 F.Supp. 238 (N.D.Ga.1973). 'The principle of non-discrimination requires that individuals be considered on the basis of individual capacities and not on the basis of any characteristics generally attributed to the group.' Weeks v. Southern Bell Telephone & Telegraph Co., 408 F.2d 228, 235 (5th Cir. 1969), quoted with approval in Pittsburgh Press, supra, at 465, 287 A.2d at 170.

As specifically applied to unwed pregnant teachers, Appellant would have to establish that all or substantially all of these individuals could not provide the proper moral model believed to be necessary for school-age children. The record in this respect, consisting as it does of merely a stipulation admitting to the existence of the maternity policies here attacked, does not reflect a consideration of the moral qualifications of the individual...