Pittsburgh Press Co. v. Pittsburgh Commission on Human Relations

• Decision Date: 21 June 1972
• Citation: 287 A.2d 161,4 Pa.Cmwlth. 448
• Parties: , 4 Fair Empl.Prac.Cas. (BNA) 325, 4 Empl. Prac. Dec. P 7732 PITTSBURGH PRESS COMPANY, Appellant, v. The PITTSBURGH COMMISSION ON HUMAN RELATIONS, and City of Pittsburgh,Appellee, and The National Organization For Women, Inc., Intervenor-Appellee, and The American Newspaper Publishers Association, Amicus Curiae.
• Court: Pennsylvania Commonwealth Court

Page 161

287 A.2d 161

4 Pa.Cmwlth. 448, 4 Fair Empl.Prac.Cas. (BNA) 325,

4 Empl. Prac. Dec. P 7732

PITTSBURGH PRESS COMPANY, Appellant, v. The PITTSBURGH COMMISSION ON HUMAN RELATIONS, and City of Pittsburgh,Appellee and The National Organization For Women, Inc., Intervenor-Appellee and The American Newspaper Publishers Association, Amicus Curiae.

Commonwealth Court of Pennsylvania.

Argued Oct. 20, 1971.

Decided Jan. 27, 1972.

Application for Allocatur Denied June 21, 1972.

Charles Weiss, Charles R. Volk, Michael Yukevich, Jr., Thorp, Reed & Armstrong, Pittsburgh, Pa., for appellant.

Marion K. Finkelhor, Asst. City Sol., Ralph Lynch, Jr., City Sol., Pittsburgh, Pa., for appellee.

S. Asher Winikoff, Pittsburgh, Pa., for National Organization for Women.

W. Frank Stickle, Jr., Arthur B. Hanson and Ralph N. Albright, Jr., Washington, D.C., for amicus curiae.

Before BOWMAN, P.J., and CRUMLISH, Jr., KRAMER, WILKINSON, MANDERINO, MENCER and ROGERS, JJ.

OPINION

KRAMER, Judge.

This is an appeal from an Order of the Court of Common Pleas of Allegheny County dated March 24, 1971, affirming an Order of the Pittsburgh Commission on Human Relations (Commission), appellee, dated July 23, 1970. This Order found the Pittsburgh Press Company (Pittsburgh Press), appellant, to be in violation of the Human Relations Ordinance of the City of Pittsburgh and ordered the utilization of a 'classification system of employment advertisement with no reference to sex.'

This case was commenced on October 9, 1969, when the National Organization for Women (N.O.W.) filed a complaint with the Commission charging the Pittsburgh Press with 'deliberate and constant violations' of Section 8(j) of Ordinance No. 75, enacted into law by the Council of the City of Pittsburgh on February 27, 1967, and as amended by Ordinance No. 395, ¹ approved July 8, 1969. After a conference with the parties, the Commission, on November 3, 1969, found that 'probable cause' existed to support the filing of the complaint, and a public hearing was directed to be held. On January 6, 1970, the Pittsburgh Press filed its answer to the complaint, and hearings were held before the Commission on four days during January and February of 1970.

The Human Relations Ordinance has been upheld as a valid enactment of the City of Pittsburgh within the authority conferred upon the City by the Act of March 7, 1901, P.L. 20, Article XIX, Section 3, Clause XLIII, 53 P.S. § 23158. See City of Pittsburgh v. Plumbers' Local Union No. 27, 113 P.L.J. 7 (1965); Stanton Land Company et al. v. City of Pittsburgh, 33 Pa.D. & C.2d 756, 111 P.L.J. 469 (1963). Also See Act of October 27, 1955, P.L. 744, Section 12.1, as amended, 43 P.S. § 962.1.

The 'particular' of the complaint of N.O.W. reads as follows:

'The Natioanl Organization for Women charges the Pittsburgh Press with deliberate and constant violations of Section 8(j) of the Human Relations Ordinance as amended by Ordinance 395. The National Organization for Women has attempted on several occasions to convince editors and publishers of the Pittsburgh Press that their policy of allowing employers to place advertisements in male or female columns, when the jobs advertised obviously do not have bona fide occupational qualifications or exceptions, is unlawful.'

The pertinent provisions of Section 8(j) of the amended ordinance read as follows:

'It shall be an unlawful employment practice . . . except where based upon a bona fide occupational exemption certified by the Commission in accordance with Section 7, subsection (d) of this ordinance: . . .

'(j) for any person, whether or not an employer, employment agency or labor organization, To aid, incite, compel, coerce or participate in the doing of any act declared to be an unlawful employment practice by this ordinance, or to obstruct or prevent any person from enforcing or emplying with the provisions of this ordinance, or any rule, regulation or order of the Commission, or to attempt directly or indirectly to commit any act declared by this ordinance to be an unlawful employment practice.' (Emphasis added)

Section 8(e) of the amended ordinance declares it to be an unlawful employment practice:

'(e) For any employer, employment agency, or labor organization to publish or circulate, or to cause to be published or circulated, any notice or advertisement relating to employment or membership which indicates any discrimination because of race, color, religion, ancestry, national origin or place of birth, or sex.'

Section 7(d), mentioned in Section 8(j) above, reads:

'The Commission shall have the power and it shall be its duty to:

'(d) Certify upon the request of any person that a particular occupation or position is exempt from the provisions of this ordinance relating to unlawful employment practices if the Commission finds that the occupation or position reasonably requires the employment of a person or persons of a particular race, color, religion, ancestry, national origin or place of birth, or sex and that such certification is not sought as means of circumventing the spirit and purpose of this ordinance, the burden of proving the facts required for such a finding to be in each instance upon the person requesting the certification of exemption from the provisions of this ordinance.'

We should also point out that under definitions in Section 4 of the Ordinance, we find:

'(b) Discriminate and discrimination--The terms 'discriminate' and 'discrimination' include any difference in treatment based on race, color, religion, ancestry, national origin, place of birth, or sex.'

The record in this case clearly shows that the Pittsburgh Press has attempted to eliminate discriminatory employment advertising on the basis of sex and thereby achieve the goals of the Ordinance. Illustrative of this attempt are references in the record to changes already made in its advertising column headings and efforts to eliminate the terms 'male' and 'female' in the body of employment advertising ads. These changes were effected through negotiation and conference with the Commission. The record indicates an intent and desire on the part of the Pittsburgh Press to cooperate with the Commission in eliminating discriminatory wording in employment advertising. This certainly is commendable and to be expected of the Pittsburgh Press in light of its role as one of the nation's leading civil rights advocates in both word and deed.

The complaint of N.O.W., and this opinion, are restricted to alleged discrimination found in employment advertising column headings. The specific wording of the employment advertising column headings which are at issue in this case are three, namely, 'Jobs--Female Interest' 'Jobs--Male Interest' and 'Male--Female Help'.

In view of the fact that the court below did not take any additional testimony or receive any additional evidence, the scope of review of this Court is to determine whether or not the Commission abused its discretion or committed an error of law. Gabriele v. Boeing Co., Vertol Division, 1 Pa.Cmwlth. 96, 99, 272 A.2d 527, 529 (1971), Romain v. Middletown Area School District, 1 Pa.Cmwlth. 419, 421, 275 A.2d 400 (1971).

It should be pointed out that the record also indicates that the Pittsburgh Press publishes, what was termed in the record as, a 'disclaimer' at the beginning of the male and female interest want ads, which reads as follows:

'Notice to job seekers. Jobs are arranged under male and female classifications for the convenience of our readers. This is done because most jobs generally appeal more to persons of one sex than the other. Various laws and ordinances--local, state, and federal, prohibit discrimination in employment because of sex, unless sex is a bona fide occupational requirement. Unless the advertisement itself specifies one sex or the other, job seekers should assume that the advertiser will consider applicants of either sex in compliance with the laws against discrimination.'

In its 'Decision and Order' the Commission made ten findings of fact which, upon our review of the record, are supported by substantial evidence. The Commission and the court below concluded that in its employment advertising the Pittsburgh Press was aiding employers in discriminating against women through the use of the above-noted column headings, and therefore was engaged in an unlawful employment practice violative of Section 8(j) of the Ordinance.

The lower court, in a lengthy opinion, affirmed the findings of fact and conclusions of law made by the Commission and directed the Pittsburgh Press to comply with the Commission order on or before May 10, 1971. An appeal was taken to this Court, and we granted the prayer of a petition for a supersedeas, pendente lite. The court below was aided by the participation of a number of amici curiae who filed briefs, two of whom were permitted by this Court to intervene. Briefs were submitted by the Solicitor of the City of Pittsburgh, on behalf of N.O.W. in support of the Commission's Order, and by the American Newspaper Publishers Association (ANPA) in support of the position of the Pittsburgh Press.

The Pittsburgh Press in its brief raises three issues which we will cover in the following sequence. First, the Pittsburgh Press states that the Commission violated its constitutional rights to due process of law by issuing an adverse order based upon a record devoid of any identified, alleged or proven principal offense. Secondly, the Pittsburgh Press argues that its use of the employment advertisement column headings in question does not constitute discrimination is prohibited by the Ordinance. Lastly, the Pittsburgh Press argues that the scope of the order of the Commission as affirmed by the court below exceeds the scope of the Commission's authority and jurisdiction and that it is too broad in proscribing all reference to male and female, in that the Ordinance itself allows certain exemptions.

DUE PROCESS

The...