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PITTSBURGH PRESS EMPLOYMENT ADVERTISING DISCRIMINATION APPEAL (01/27/72)

decided: January 27, 1972.

PITTSBURGH PRESS EMPLOYMENT ADVERTISING DISCRIMINATION APPEAL


Appeal from the Order of the Court of Common Pleas of Allegheny County in case of Appeal of Pittsburgh Press Company from the Order of the Pittsburgh Commission on Human Relations at S.A. 768 of 1970.

COUNSEL

Charles Weiss, with him Charles R. Volk, Michael Yukevich, Jr., and Thorp, Reed & Armstrong, for appellant.

Marion K. Finkelhor, Assistant City Solicitor, with him Ralph Lynch, Jr., City Solicitor, for appellee, City of Pittsburgh.

S. Asher Winikoff, for additional party, The National Organization For Women, Inc.

W. Frank Stickle, Jr., with him Arthur B. Hanson and Ralph N. Albright, Jr., for amicus curiae, The American Newspapers Publishers Association.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Manderino, Mencer and Rogers. Judge Manderino did not participate in the decision. Opinion by Judge Kramer. Dissenting Opinion by Judge Crumlish, Jr. Judge Mencer joins in this Dissenting Opinion. Dissenting Opinion by Judge Mencer.

Author: Kramer

[ 4 Pa. Commw. Page 451]

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,*fn1 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 been upheld as a valid enactment of the City of Pittsburgh within the authority confered 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,

[ 4 Pa. Commw. Page 452111]

P.L.J. 469 (1963). Also see Act of October 27, 1955, P.L. 744, Section 12.1, as amended, 43 P.S. ยง 962.1.

The "particular" of the complaint of N.O.W. reads as follows: "The National 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 complying 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

[ 4 Pa. Commw. Page 453]

    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

[ 4 Pa. Commw. Page 454]

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. Commonwealth Ct. 96, 99, 272 A.2d 527, 529 (1971); Romain v. Middletown Area School District, 1 Pa. Commonwealth Ct. 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."

[ 4 Pa. Commw. Page 455]

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 as 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

[ 4 Pa. Commw. Page 456]

    all reference to male and female, in that the Ordinance itself allows certain exemptions.

Due Process

The Pittsburgh Press argues that failure on the part of N.O.W. to specifically allege, prove or identify the principal offense of discrimination renders the Commission's Order invalid in that due process of law was not afforded to the Pittsburgh Press.

The Pittsburgh Press is correct in its assertion that due process of law is as equally applicable to administrative proceedings as it is to judicial proceedings. In W.J. Dillner Transfer Co. v. Pennsylvania P.U.C., at 175 Pa. Superior Ct. 461, 468-69, 107 A.2d 159, 163 (1954), our Superior Court said: "Appellant argues it was not sufficiently apprised of the issue in that the complaint set forth and charged a violation of appellant's authority at Folder 3 of A. 61744, whereas the Commission based its finding on violation particularly on an interpretation of authority granted at Folder 2 of A. 61744. Admittedly, the requirement of procedural due process applies to proceedings before administrative tribunals as well as judicial bodies. The question of what constitutes a specific designation of the issue raised or charges made depends upon the violation alleged and the type of investigation being conducted. Armour Transportation Company v. Pennsylvania P.U.C., 138 Pa. Super. 243, 10 A.2d 86; . . . ."

In the Armour case, supra, the court at 249 cited its earlier opinion in National Automobile Corp. v. Barfod, 289 Pa. 307, 311, 137 A. 601, 602 (1927): "The requirement of due process of law, however, applies to administrative as well as to judicial proceedings. The doctrine of notice and hearing thus becomes a more potent force in our land, because it applies to the decisions

[ 4 Pa. Commw. Page 457]

    and acts of administrative officials and, unless there are extraordinary emergencies, this essential requisite of due process cannot be dispensed with." The Armour court also said at 250-51: "There must be due notice and an opportunity to be heard, the procedure must be consistent with the essentials of a fair trial, and the commission must act upon evidence and not arbitrarily. . . . Railroad Commission v. Pacific Gas & Electric Co., 302 U.S. 388, 393, 82 L. Ed. 319. The question of what is proper notice, or, as here, of what constitutes a specific designation of the issue raised or charges made, depends necessarily upon the facts of each case, the type of investigation being conducted, the violations alleged, and the penalty or order sought to be imposed. Where the purpose of the investigation by the Commission is only to determine the reasonableness of rates charged by utility, a different standard would seem to apply than where the franchise of the utility is sought to be revoked for violation of the utility laws and a penalty or fine imposed."

The ingredients of due process have been discussed in a multitude of judicial opinions. A reading of many of these cases confirms our understanding that due process of law is afforded when (1) the "accused" is informed with reasonable certainty of the nature of the accusation lodged against him, (2) he has timely notice and opportunity to answer these charges and to defend against attempted proof of such accusation, and (3) the proceedings are conducted in a fair and impartial manner. The Pittsburgh Press does not contend that it was denied an opportunity to defend itself or that it was denied an impartial and fair hearing. The Pittsburgh Press does insist, however, that it was ...


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