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WELLS v. CIVIL SERVICE COMMISSION (01/06/67)

decided: January 6, 1967.

WELLS, APPELLANT,
v.
CIVIL SERVICE COMMISSION



Appeal from decree of Court of Common Pleas No. 10 of Philadelphia County, March T., 1966, No. 2406, in case of Ruth S. Wells v. Civil Service Commission and Foster Roser, personnel director, City of Philadelphia.

COUNSEL

Marvin R. Halbert, for appellant.

Matthew W. Bullock, Jr., Second Deputy City Solicitor, with him Edward G. Bauer, Jr., City Solicitor, for appellees.

Bell, C. J., Musmanno, Jones, Eagen, O'Brien and Roberts, JJ. Dissenting Opinion by Mr. Justice Roberts.

Author: Per Curiam

[ 423 Pa. Page 603]

The Philadelphia Home Rule Charter empowers the Personnel Director "to use any investigation of education and experience, and any test of capacity, knowledge, manual skill, character or physical fitness which in his judgment serves this end."*fn1 In the exercise of this authority the personnel director of the City of Philadelphia prepared an examination for policewomen which differed somewhat from the one which applied to policemen. Specific in the distinction was the factor that policewomen seeking promotion to policewomen sergeancies were required to undergo an oral test, whereas the examination for policemen did not include an oral test.

Ruth S. Wells, a policewoman employed by the City of Philadelphia, seeking promotion to the position of policewoman sergeant, filed a complaint in equity against the Civil Service Commission and the personnel director of the City, praying for a decree which would eliminate the oral test from the examination for the position of policewoman sergeant.

The defendants filed preliminary objections averring that the complaint failed to state a cause of action in that no justiciable issue was raised. The Court of Common

[ 423 Pa. Page 604]

Pleas No. 10 of Philadelphia County sustained the preliminary objections, and dismissed the complaint. The plaintiff appealed.

The plaintiff contends that the oral test for female applicants and not for male applicants is an arbitrary and unfair discrimination and thus violates the equal protection clause of the 14th Amendment to the Constitution of the United States. The plaintiff admits in her brief that "there is, of course, no rule requiring equal treatment for men and women under all circumstances." That is the answer to the problem raised in this case. As stated by Justice Frankfurter in Goesaert v. Cleary, 335 U.S. 464, "the Constitution does not require situations 'which are different in fact or opinion to be treated in law as though they were the same.'"

While it would be banal superfluity to state that women are entitled to the same rights and prerogatives of citizenship as men, it cannot be said, in the interests of public welfare, that they may compel an employer to assign them to tasks for which, in the best, impartial judgment of the employer, they may not only not be properly trained, but tasks where they may be subjected to perils with which they are not fitted to cope. For instance, there are some phases of firefighting where a man, because of superior physical strength, hardened muscles and intensive training can unquestionably combat a conflagration more effectively than a woman. On the other hand, there are fields in which women can do a better job than men, as, for instance, the superintendency of a girls' school.

The plaintiff argued in the court below that the position of male police sergeant and female police sergeant are substantially identical. The court replied to this argument: "Many of the tasks performed by the police force are of such a nature, physiologically speaking, that they cannot and should ...


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