Sanford Kahn, Gen. Counsel, Elizabeth S. Shuster, Asst. Gen. Counsel, Pa. Human Relations Com'n, Harrisburg, for appellant.
R. Clifford Hood, Beaver Falls, Edward S. Young, New Brighton, for appellees.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Roberts, J., filed a dissenting opinion in which Nix, J., joins. Manderino, J., filed a dissenting opinion.
To ameliorate the drain on the resources of its local police department caused by the growing demand for parking meter patrols, the City Council of Beaver Falls enacted an ordinance authorizing the employment of "two (2) women to assist the police department in the patrolling of parking meters and parking stalls."*fn1 Marie A. Morrell and Lauretta C. McConahy were hired by the City as "meter maids" to fill the two positions created by the ordinance. After the two women had been employed for periods of three years and five and one half years respectively, they filed a complaint before the Pennsylvania Human Relations Commission*fn2 [hereinafter "the Commission"] alleging that the Beaver Falls City Council, Mayor Nick L. Camp and Chief of Police Russell Chiodo, appellees herein, engaged in unlawful sex discrimination in violation of § 5(a) of the Pennsylvania
Human Relations Act.*fn3 The complaint alleged in pertinent part:
". . . that the respondents discriminated against them and all other women as a class in the terms, conditions and privileges of employment as police officers because of their sex (female) by (a) restricting their job opportunities solely to the position of meter maid, (b) compensating them at a lower pay rate than male employes assigned to similar job duties, (c) refusing to grant them pay increases similar to that furnished male police officers in line with past practices, and (d) by changing the status of their job assignment from that of full-time employes to part-time employes causing the complainants a loss in wages and denial of vacation, sick and health insurance and all other benefits of employment furnished full-time employes of the respondent."
In support of their complaint the complainants established at a hearing that despite the fact that they performed functions previously undertaken by police officers, they were not given raises which were awarded to policemen, they were obliged to work longer hours for less pay, they had a less advantageous vacation schedule than did policemen and they enjoyed no civil service or collective bargaining protection.
After a hearing the Commission made the following conclusion of law:
". . . that Respondents [appellees] did discriminate on the basis of sex, with respect to the Complainants' compensation, terms, conditions and privileges of employment, including salary increases, hours of work, overtime pay and vacation leave, by treating Complainants as de facto members of the Beaver Falls Police
Department while failing to create positions on the Police Department with duties and responsibilities similar to those performed by Complainants and providing Complainants with an opportunity to secure said positions; and by purposefully restricting the hiring and advertising for the positions held by Complainants to females only."
To remedy these discriminatory practices the Commission ordered the City of Beaver Falls, inter alia, to create within the police department of the City two meter patrol officer positions to correspond to the positions created under the ordinance; to hire complainants to fill these positions; to bestow full civil service status on complainants without regard to governing statutory requirements;*fn4 and to make various salary adjustments in complainants' pay. In addition the Commission declared null and void the ordinance which created the meter maid positions.
On appeal the Commonwealth Court set aside the order of the Commission. In that court's view, the gravamen of the complaint was that meter maids, because of their sex, were denied the same employment benefits enjoyed by police officers. Accordingly, the court reasoned, the propriety of the Commission's order turned on whether the complainants were in fact serving in the capacity of police officers and thus deserving of equal treatment. The court concluded that complainants do not perform those functions commonly associated with the responsibilities of a police officer. It held, accordingly, that the complaint was without merit. In addition,
the court held that the Commission could not, in the instant proceeding, declare the meter maid ordinance to be null and void because the complainants, as beneficiaries of the ordinance, lacked standing to contest its legality. We granted allocatur and now affirm the order of the Commonwealth Court.
The complaint before the Commission alleged that appellees discriminated against complainants "in the terms, conditions and privileges of employment as police officers because of their sex." The fair import of this language is that the complainants believed that the meter maid position entails functions, formerly performed by the police, which should still be considered police work; these functions, it is argued, were severed from the police department and assigned to women in order to allow the city to hire females to do police work without having to grant them corresponding benefits. The central premise upon which the complaint rests is that the meter maids are, in truth, police officers. If this premise has not been established then it follows that complainants have demonstrated no entitlement to a police officer's employment benefits; the mere fact that a newly established non-police position has been assigned exclusively to females would not be an adequate ground to bestow upon those female employees the attributes of employment which are enjoyed by police officers.
As Judge Rogers put it in his opinion for a unanimous Commonwealth Court, "the title of policeman [may] be properly applied to one who performs services critical to public safety in the investigation and detection of serious crimes -- a person trained, equipped (with . . . gun, handcuffs, badge of office and motor vehicles) and actually engaged in the detection of persons suspected of crime." Beaver Falls City Council et al., v. Commonwealth of Pennsylvania, Pennsylvania Human Relations Commission, 17 Pa. Commw. 31, 330 A.2d 581,
(1975). This definition is in accord with prior opinions which have addressed the issue. McNitt v. Philadelphia, 325 Pa. 73, 189 A. 300 (1937); Venneri v. County of Allegheny, 5 Pa. Commw. 105, 289 A.2d 523 (1974); County of Allegheny v. Hartshorn, 9 Pa. Commw. 132, 304 A.2d 716 (1973), aff'd 460 Pa. 560, 333 A.2d 914 (1975). The primary responsibility of the meter patrol officer, in contrast, is to ticket those automobiles which are found to be parked overtime at parking meters. Although they are sometimes asked to look out for stolen vehicles and have, on occasion, assisted in the transportation of female prisoners, meter maids are in no way trained or equipped to engage in the investigation of persons suspected of committing serious offenses. The fact that meter maids do enforce the city's parking ordinances does not convert them to police officers. In McNitt v. Philadelphia, supra, we considered whether a fire marshall who was responsible for the investigation of possible arson offenses may, for that reason, be said to be a police officer. We observed that "fire marshalls, mine inspectors, factory inspectors, boiler inspectors, and milk inspectors are all charged with law enforcement duties, but they help enforce laws affecting only special subjects, while a policeman's duty is the enforcement of all laws whose violation affects the peace and good order of the Community." Id., 325 Pa. at 76, 189 A. at 301. On this basis we concluded in McNitt that fire marshalls are not policemen. For like reason, meter maids cannot be considered police officers simply because they are engaged in the enforcement of a limited, specialized type of traffic regulation.
The Commission, however, urges that the complaint was not bottomed on the contention that the complainants were police officers; it concedes that "Beaver Falls could have created the lower-status meter patrol officer position to perform duties previously performed by patrolmen if the new positions were in fact, as well as on
their face, sex neutral." (Appellant's brief at 12). The Commission contends that the Commonwealth Court misperceived the problem and it urges that we direct our attention to the discriminatory nature of the meter maid ordinance. The Commission argues that the ordinance as written impliedly limits employment opportunities for women on the Beaver Falls police department and was designed to preclude women from employment on the all male force. In essence the Commission portrays the ordinance as an extension of pre-existing discriminatory hiring policies of the police department.
The simple answer to the Commission's assertion is that the complainants have not alleged that they were denied employment on the Beaver Falls police force. Indeed, neither Morrell nor McConahy ever applied for employment as a police officer nor did they seek by their complaint to be installed in such a position. Rather they seek to elevate their current jobs to the status of police officer and thereby attain the attendant benefits. For the reasons stated above, the complainants are not entitled to such relief.
The Commission contends finally, that, by requiring the employment of women, Ordinance 1211, see n. 1, supra, violates the anti-discrimination provisions of § 5(a). Although the impact of that ordinance on female employment opportunities is facially beneficial, the Commission asserts that the enactment serves to discriminate against women. It attempts to analogize the ordinance to those protective statutes which have been enacted to insulate women from physically demanding jobs,*fn5 unwholesome employment atmospheres*fn6 or like requirements or conditions of employment which legislators have misguidedly perceived as having a deleterious effect
on women. While the Commission quite correctly points out that women have successfully attacked such statutes under the applicable fair employment laws, its argument overlooks the vital distinction between protective statutes and the ordinance here in question.
Protective statutes impose legal limitations on the type of work which a woman may be allowed to do, regardless of individual qualifications or capabilities. These restrictions are based on stereotypic assumptions about female workers as a class and as a result may be attacked by members of that class. The Beaver Falls ordinance, however, in no way serves to restrict the employment opportunities of the female worker. It does not preclude a woman from applying to the police department for employment as a police officer and it does not restrict the scope of responsibilities which a woman could assume were she hired for that position. The arguable taint of the ordinance lies in its expressed exclusion of males. There was, however, no male complainant before the Commission who sought redress of this wrong. Thus the Commonwealth Court correctly concluded that the viability of the ordinance under § 5(a) of the PHRA was not properly in issue.*fn7
In concluding, we emphasize that the instant case is not one in which the police department is alleged to have discriminated on the basis of sex by refusing to hire women as police officers. Rather, we have here an attempt by a city to economize by severing from the police department certain functions once within the scope of its operations by the creation of a new job category which
has been made available to women only. Whether or not a city may legally so restrict the new position, it is under no duty to compensate whomever it hires ...