Katherine H. Fein, Asst. Gen. Counsel, Pittsburgh, Sanford Kahn, Gen. Counsel, Pa. Human Relations Comm., Harrisburg, for appellant.
Frederick N. Egler, Egler & Reinstadtler, Pittsburgh, for appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Manderino, J., filed a concurring opinion in which Roberts and Nix, JJ., join. Jones, C. J., dissents.
On September 19, 1971, Agnes Stokles, Anna Katynski and Mary Kush filed a complaint with the Pennsylvania Human Relations Commission [hereinafter "the Commission"] on behalf of themselves and all other similarly situated female employees of appellee, General Electric Corporation, alleging that General Electric had engaged in sexually discriminatory practices in violation of Section 5(a) of the Pennsylvania Human Relations Act, Act of October 27, 1955, P.L. 744, Section 5(a), as amended, 43 P.S. § 955(a) (Supp.1974-1975).*fn1 Specifically, the complaint alleged that General Electric "failed to offer the complainants and other female employees similarly situated the same terms and conditions to secure full time employment after phasing out the coil department because of their sex, female, while offering less senior
males of the same work unit full time employment in all areas not effected [sic] by the elimination of the coil department". After a hearing the Commission found that General Electric had violated Section 5(a) and entered a final order prescribing remedies not here at issue.*fn2 General Electric appealed and the Commonwealth Court reversed the Commission. General Electric v. Pennsylvania Human Relations Commission, 18 Pa. Commw. 316, 334 A.2d 817 (1975). We granted allocatur and now reverse.*fn3
It is well established that the findings of the Commission may not be disturbed on appeal if they are in accordance with the law and are supported by substantial evidence. Act of June 4, 1945, P.L. 1388, § 44, 71 P.S. § 1710.44; Pennsylvania Human Relations Commission v. Chester Housing Authority, 458 Pa. 67, 327 A.2d 335, cert. denied 420 U.S. 974, 95 S.Ct. 1396, 43 L.Ed.2d 654 (1974); Slippery Rock State College v. Pennsylvania Human Relations Commission, 11 Pa. Commw. 501, 314 A.2d 344 (1974); Straw v. Pennsylvania Human Relations Commission, 10 Pa. Commw. 99, 308 A.2d
(1973). The Commonwealth Court reversed the Commission not because its factual findings were unsupported by the record but because its conclusions of law were found to be erroneous. The issues raised in this appeal relate to the correctness of these legal conclusions. In order for these conclusions to be understood, however, it will first be necessary to recite the uncontested factual findings of the Commission. This is done in Part I of the Opinion. In Part II we explore the legal issues and state the reasons why the decision of the Commonwealth Court must be reversed.
Prior to the "phase-out" of the coil department in General Electric's Pittsburgh Apparatus Shop, Agnes Stokles, Mary Kush and Anna Katynski had been employed in that department as coil tapers*fn4 for continuous periods ranging from thirty-six to twenty-two years. The position of coil taper, like all positions in the Pittsburgh shop, was classified by two methods. The first was through a job hiring classification system which consisted of a number preceded by an "R" prefix [hereinafter "R rating"]. The lowest hiring classification was an R-4, the highest R-25. The R classification both denoted one's base pay and also determined one's ability to transfer to equivalent R rated positions or to bump into equivalent or lower rated jobs.
Each job within the shop had a range of maximum and minimum R classifications which could be assigned to it. Within the coil department there were four such subdivisions of R classifications. These were designated from highest to lowest by the letters "A", "B", "C" and "D" respectively. Within the coil department of the Pittsburgh shop all female employees had been hired as coil workers C or D and none had an R rating in excess
of R-9. All but three male employees, on the other hand, were employed as coil workers A or B and had R ratings in excess of R-11. As a consequence they enjoyed more advantageous transfer and bumping rights. The three named complainants were all coil workers C with an R-9 classification.
In addition to the bumping and transfer privileges mentioned above, there were two methods through which an employee in the Pittsburgh shop could broaden his or her base of work experience. The first method allowed employees in lower rated positions to bid on unfilled vacancies in higher rated positions. Only one woman had attempted to exercise this bidding right prior to 1969,*fn5 and no woman has made such an attempt since General Electric initiated during that year a policy of actively encouraging female employment. The complainants contended that females did not bid for such jobs because it was commonly understood that all jobs other than that of coil taper were "male" jobs to which no female would be assigned. The Commission found, however, that while such an attitude may have existed, it was not the result of any overt or passive policy on the part of General Electric.
The second method of obtaining broader work experience was through "road work" which was assigned by departmental supervisors from time to time to various employees within the coil department. "Road work" consisted of trips to outlying General Electric facilities to repair electrical equipment which was too large to bring back to the Pittsburgh shop. In making these repairs employees received training in skills which they would not have otherwise obtained within the coil department. Significantly, with one exception, women
were never invited to engage in such road work.*fn6 General Electric attempted to justify this exclusion on the ground that the female employees seemed engrossed in their work and that they would not have been capable of undertaking the assignments.*fn7 The Commission found that this procedure had a "disparate impact" on females.
At the end of 1970 General Electric decided to phase out the coil department. At that time the department employed twenty-one female and twenty male employees. The company offered to transfer the employees to a new operation in Ohio or to attempt to find positions for them elsewhere in the Pittsburgh shop. Lay off and transfer decisions were to be made in accordance with the local labor-management contract. This provided: "Lay-offs and transfers due to lack of work will be made in accordance with the length of continuous service within the affected occupational group. However, ability will be given consideration."
During the early part of 1971 General Electric completed the phase-out of the department. Of the twenty-one female employees, sixteen were laid off, four were offered part-time positions and one retired.*fn8 Of the
twenty male employees, sixteen were transferred into full time positions, three bumped into full time positions and one was laid off. Most of the males who bumped or were transferred into other positions by General Electric had less seniority than the women who were laid off. Few of the men had ever held, even temporarily, the job positions to which they were transferred. Transfer decisions were, in many instances, based upon a supervisor's personal familiarity with experiences which the male employees had had outside of their employment at General Electric. These experiences were not reflected in the employees' official record but were nevertheless relied upon to determine whether a male employee had the aptitude or experience to fill a given opening. No effort was made to ascertain whether any of the female employees had similar job-related experiences which did not appear on their records. In other instances, General Electric retained male employees because of the training they had received during various road work assignments.
It was on the basis of this evidence that the Commission concluded that General Electric had engaged in unlawful employment practices in violation of Section 5(a) of the Act. In particular, the Commission concluded that General Electric violated the Act by failing to take affirmative action to dispel an erroneous feeling among its employees that certain jobs were for males and certain jobs were for females; by retaining the female employees in the lowest job classifications and thus limiting their rights to bump; by failing to ascertain the females' general work experience and qualifications for available positions on an equal basis with male employees; by training males to fill positions for which they had no previous experience while failing to offer females the same opportunities to be trained for new positions; and by following general procedures during the phase-out which had a disparate impact upon the female employees' job opportunities. The Commission also concluded that
the statutory requirement of proving that the complainants were the "best able and most competent to perform services required" was not applicable under the circumstances of this case.
Section 5(a) of the Pennsylvania Human Relations Act reads ...