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decided: April 8, 1975.


Appeal from the Order of the Pennsylvania Human Relations Commission in case of Linda Szul v. Freeport Area School District, Charles T. Woll, Superintendent, No. E-5402.


Harry K. McNamee, with him James P. MacFarlane and Marshall, Marshall, McNamee & MacFarlane, for appellant.

Jay Harris Feldstein, Assistant General Counsel, with him Feldstein, Bloom & Grinberg, for appellee.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by President Judge Bowman. Concurring and Dissenting Opinion by Judge Rogers. Concurring and Dissenting Opinion by Judge Wilkinson. Dissenting Opinion by Judge Mencer.

Author: Bowman

[ 18 Pa. Commw. Page 403]

The Freeport Area School District, located in Allegheny County, has appealed from an order of the Pennsylvania Human Relations Commission upholding a challenge to the district's maternity leave policy. The Commission, after hearing, concluded that the policy in question offended section 5(a) of the Pennsylvania Human Relations Act*fn1 which declares it unlawful for an employer to discriminate by reason of sex "with respect to compensation, hire, tenure, terms, conditions or privileges of employment . . .," ordered the district to make payments to four employes with respect to whose employment the policy had been applied, directed the district to alter its policy to conform to Commission regulations*fn2 and to report to the Commission its actions with reference to the change of policy.

[ 18 Pa. Commw. Page 404]

The district's maternity leave policy is embodied in a collective bargaining agreement effective August 30, 1971, negotiated by the district and the Freeport Education Association, the bargaining representative of professional employes, including the persons afforded relief by the Commission's order herein. Article XV of the agreement, entitled "Unpaid Leaves of Absence" provides as follows:


Maternity leave shall be granted to an employee under the following conditions:

1. As soon as an employee becomes aware of her pregnancy, she shall, on the prescribed Board form, notify the Superintendent.

2. She may request maternity leave in writing up to 3 1/2 months prior to the estimated date of birth. In no event shall her employment continue during the 3 1/2 months immediately preceding the estimated date of birth.

3. Written application to the Superintendent for re-employment may be made any time within 3 months after the date of birth or other termination of pregnancy and said employee must be available for re-employment within 12 months after the date of notification of intent to resume employment.

4. Upon receipt of written application for re-employment, the Board shall offer her the same professional assignment she held before going on maternity leave or a substantially equivalent professional assignment, if said assignments are available. If said assignments are not available, the Board shall offer her any other available professional assignment for which she is certified until such time as the Board can, through established placement procedures, offer her the professional assignment she held before, or one substantially similar to it."

[ 18 Pa. Commw. Page 405]

On September 27, 1972, Linda Szul, a teacher in the district since 1969 and the complainant herein, being pregnant, applied for maternity leave, giving April 7, 1973, as the likely date of birth. Consonant with Article XV of the collective bargaining agreement, the district notified Mrs. Szul that her leave was to commence December 23, 1972, 3 1/2 months before the predicted date of birth. Preferring to work for as long as she was able, Mrs. Szul informed the Board that she desired to remain on the job through February 9, 1973, the date until which her doctor had advised that she could physically discharge her duties. The district refused this deviation from its policy.

On December 19, 1972, Mrs. Szul filed a complaint with the Human Relations Commission alleging discrimination on the basis of sex by reason of the arbitrary termination of her employment for pregnancy. On January 11, 1973, Mrs. Szul filed an amended complaint with the Commission additionally alleging that the district's policy "has a discriminatory affect [sic] on the complainant and other females similarly situated because of their sex, female."

The district's answer to the amended complaint averred that the "rules and regulations in regard to maternity leave are reasonable and non-discriminatory on the Complainant or any other females similarly situated."

Prior to hearing and in response to a request by a Commission investigator, the district superintendent provided information as to termination dates, salaries, and other information concerning teachers other than Mrs. Szul who had been granted maternity leaves since 1969. At the hearing, in addition to the evidence given by Mrs. Szul, the Commission adduced the testimony of Karen Harrison, Mary Ippolito, and Darlaine Thompson, other district teachers who had taken maternity leaves. These persons did not file individual complaints with the Commission,

[ 18 Pa. Commw. Page 406]

    did not formally join in the complaint filed by Mrs. Szul, and did not intervene as complainants.*fn3 Their testimony was presented pursuant to the "other females similarly situated" language of Mrs. Szul's amended complaint.

The Commission concluded as a matter of law that the district's maternity leave policy was discriminatory in requiring termination of employment 3 1/2 months before predicted birth, and in assertedly not making full time reemployment available when affected employes are physically able to resume their duties. As noted, the Commission ordered the district to correct its maternity leave policy and to pay Mrs. Szul and the three additional teachers who testified at the hearing substantial sums for lost wages, accumulated sick leave, and for the loss of insurance and pay increment benefits.

Our review of an order of the Human Relations Commission is limited to determining whether it is in accordance with law, whether necessary findings of fact are supported by substantial evidence and whether the Commission abused its discretion. Tomlinson Agency v. Pennsylvania Human Relations Commission, 11 Pa. Commonwealth Ct. 227, 312 A.2d 118 (1973). The appellant district attacks the Commission's order as contrary to law and as beyond the authority of the Commission.

The respondent school district argues that the portion of the order finding the maternity leave policy discriminatory is contrary to law because the policy was negotiated as part of the collective bargaining agreement between the district and the teachers' representative and was framed in accordance with what was then determined, in good faith, by ...

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