Appeal from the Order of the Pennsylvania Human Relations Commission in case of In Re: Carole B. Anderson v. Upper Bucks County Area Vocational-Technical School, Docket No. E-6641, dated March 28, 1976.
John J. Hart, with him William E. Benner, and Power, Bowen & Valimont, for appellant.
James D. Keeney, Assistant General Counsel, with him Anne Farrer and Sanford Kahn, General Counsel, for appellee.
Walter P. DeForest, with him John G. Wayman; Scott F. Zimmerman; Peter D. Post; Reed, Smith, Shaw & McClay ; and, of counsel, Stuart I. Saltman, for amicus curiae, Westinghouse Electric Corporation.
Harriett N. Katz, with her Alice M. Price, Susan C. Nicholas, and Leonard M. Sagot, for amicus curiae, Kathleen Zichy, et al.
President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Rogers. Dissenting Opinion by Judge Mencer. President Judge Bowman joins in this dissent.
[ 30 Pa. Commw. Page 105]
This is an appeal from an adjudication of the Pennsylvania Human Relations Commission holding that the appellant Upper Bucks County Area Vocational Technical School had discriminated against an employe because of her sex in violation of Section 5(a) of the Pennsylvania Human Relations Act (PHRA),*fn1 43 P.S. § 955(a).
Carole B. Anderson, a teacher, asked the appellant School to apply her accumulated sick leave to the total time she was absent from her employment as a result of her pregnancy.*fn2 The appellant refused Anderson's request because a provision of the collective bargaining agreement between it and its teachers excluded from "Sick Leave" any benefits for pregnancy. The pertinent parts of said provisions are:
Sick Leave. In any school year whenever a professional or temporary professional employe is prevented by illness or accidental injury from following his or her occupation, the school district shall pay to said employe for each day of absence the full salary to which the employe may be entitled as if said employe were
[ 30 Pa. Commw. Page 106]
actually engaged in the performance of duty for a period of ten days. Such leave shall be cumulative from year to year. No employe's salary shall be paid if the accidental injury is incurred while the employe is engaged in remunerative work unrelated to school duties. Additional days may be approved by the School Board as the exigencies of the case may warrant.
Maternity Leave. All female employes who become pregnant are entitled to a period of childbirth leave from their duties in the School District pursuant to the following provisos;
e. All periods of childbirth leave shall be deemed leave without pay; during which period sick leave and/or other benefits will not accrue. (Emphasis in original.)
Anderson filed a complaint with the Commission alleging that the appellant's refusal of sick leave benefits for her pregnancy was sexually based and that it violated Section 5(a) of the PHRA. Following unsuccessful efforts at conciliation, the parties entered into a stipulation of facts. The Commission thereupon decided that:
2. Pregnancy-related disability is a temporary disability which must be treated in the same manner as any other temporary disability. Since pregnancy-related disability is a disability common only to women, to treat it differently from other disability by extending inferior compensation, terms, conditions and privileges of employment constitute sex discrimination in violation of Section 5(a) of the Pennsylvania Human Relations Act.
[ 30 Pa. Commw. Page 107]
and ordered the appellant to pay Anderson the amount of money she would have received if her request for sick leave had been granted. The School has appealed.
Our review of appeals of a Commission order is limited to determining whether they are in accordance with law; whether substantial evidence supports findings of facts necessary to sustain the order; and whether the Commission properly exercised its discretion. Leechburg Area School District v. Human Relations Commission, 19 Pa. Commonwealth Ct. 614, 339 A.2d 850 (1975). The facts having been stipulated, our duty is only to decide whether the appellant's sick leave policy as it applies to pregnancy is an unlawful discriminatory practice with respect to the privileges of Anderson's employment.
Section 5(a) of the PHRA, 43 P.S. § 955(a) pertinently declares that:
It shall be an unlawful discriminatory practice, unless based upon a bona fide ...