Appeal from a determination of the Pennsylvania Human Relations Commission in case of, Request of City of Philadelphia for approval of bona fide occupational qualification certification.
Albert J. Persichetti, Deputy City Solicitor, with him John Mattioni, Deputy City Solicitor, and Martin Weinberg, City Solicitor, for appellant.
Stanton W. Kratzok, Assistant General Counsel, with him Roy Yaffe, Acting General Counsel, for appellee.
President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Crumlish, Jr. Judge Wilkinson concurs in the result only. Dissenting Opinion by Judge Blatt.
The City of Philadelphia, in operating its Youth Study Center, has traditionally restricted the supervision
of its wards to those who were of the same gender.
The Commonwealth's Human Relations Commission in liberally assigning its ideals to given cases has decided that there is no merit to the City's contention that the circumstances in this particular instance justify allowance of a Bona Fide Occupational Qualification (BFOQ), for its supervisors.
To avoid a charge of sexual discrimination under the Pennsylvania Human Relations Act,*fn1 the City on April 13, 1970, requested the Commission, in writing, to grant it BFOQ, relating therein the unusual nature of the job responsibility.
The following recorded events are pertinent.
On April 30, 1970, the Commission requested additional information in the form of job descriptions and outlines of typical work assignments. Job specifications issued by the Civil Service Commission of the City of Philadelphia for the positions of Youth Center Supervisor I, Supervisor II, Youth Center Night Superintendent, and Youth Center Head Supervisor were then forwarded to the Commission.
On May 21, 1970, the Commission granted the City authority to make a selective certification for the position of Youth Center Supervisor I because of certain physical dangers "unique to this position that may endanger the health and safety of female employees" if females were hired to supervise male juveniles.
The City on September 30, 1970, asked the Commission to grant a BFOQ for the position of Youth Center Supervisor II and Youth Center Head Supervisor. These job assignments are the promotional level positions for Youth Center Supervisor I for which a BFOQ
had already been granted. A letter dated December 4 extended the request for BFOQ to Youth Center Aide.
On March 12, 1971, the Commission informed the City that formal guidelines had been adopted by the Commission to aide in implementing the provisions of the Pennsylvania Human Relations Act, and in order for the City to retain its BFOQ for Youth Center Supervisor I and to gain any further exemption for the promotional level positions of that classification, new requests supported by proper justification were required.
The City, in a letter dated March 29, 1971, formally renewed its request for a BFOQ for Youth Center Supervisor I and its promotional levels. Included with this request was a letter of justification from the Executive Director of the Youth Study Center which purported to detail the Center's juvenile housing procedure and some of the problems attendant thereto. The letter of justification suggested certain factors which the Director felt necessitated a BFOQ to limit female supervision to female juveniles, and male supervision to males. The Executive Director also asked for an opportunity to personally present to the Commission its case if indeed the Commission felt the Executive Director's letter of justification was inadequate.
On April 8, 1971, the Commission withdrew its approval of a BFOQ for the position of Youth Center Supervisor I and denied the City's subsequent and extended requests for exemptions for the promotional levels of that position. The Commission did give the Executive Director the opportunity to personally appear before the Commission and elaborate his position. The record leaves us without the reason he chose not to appear.*fn2
The City contends that the Commission misinterpreted the intent of the Legislature when it created the BFOQ exemption by confusing it with the anti-discrimination hiring provisions of the Human Relations Act.
The City's broad brush argument is inacceptable. However, we do agree that in the instant factual posture, the Commission should have granted the BFOQ exemption to the City so that it should engage only females to supervise female detainees at the Center and only males to supervise male detainees.
Section 5 of the Human Relations Act, 43 P.S. § 955 (see footnote 1, supra), provides: "It shall be an unlawful discriminatory practice, unless based upon a bona fide occupational qualification. . . (a) For an employer because of the . . . sex . . . of any individual to refuse to hire or employ or to bar . . . from employment such individual . . . or to otherwise discriminate against such individual with respect to . . . hire . . . if the individual is the best able and most competent to perform the services required. . . ." (Emphasis supplied.)
The Pennsylvania Human Relations Commissions, which is created by the Human Relations Act to carry out its provisions, has promulgated regulations outlining when and through what procedures a "bona fide occupational qualification" will be granted. These regulations provide in part:
"§ 6 Bona Fide Occupational Qualifications.
"(A) § 5 (of the Human Relations Act, see quoted above) provides that the Act shall not apply if the practices defined as unlawful are based on a bona fide occupational qualification. Such exemptions from the coverage of the Human Relations Act are not to be granted liberally but they will be given in appropriate cases.
"The procedure for securing such exemptions is to write to the Commission requesting a bona fide occupational qualification exemption and stating:
"(1) The jobs involved by title, number of positions, and duties, demonstrating why all persons of one sex cannot perform the functions of the job.
"(2) The reasons for requesting the exemption.
"(3) The length of time for which the ...