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PITTSBURGH PRESS COMPANY v. COMMONWEALTH PENNSYLVANIA (07/21/77)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: July 21, 1977.

PITTSBURGH PRESS COMPANY, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA HUMAN RELATIONS COMMISSION, RESPONDENT

Appeal from the Order of the Pennsylvania Human Relations Commission in case of Pennsylvania Human Relations Commission v. Pittsburgh Press Company, a corporation, Docket No. E-8528.

COUNSEL

Robert H. Shoop, Jr., with him Thorp, Reed & Armstrong, for appellant.

Elisabeth S. Shuster, Assistant General Counsel, with her Sanford Kahn, General Counsel, for appellee.

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

Author: Kramer

[ 31 Pa. Commw. Page 219]

This is an appeal by the Pittsburgh Press Company (the Press) from an order of the Pennsylvania Human Relations Commission (the Commission) ordering the Press to cease and desist the publication of

[ 31 Pa. Commw. Page 220]

"Situation-Wanted" advertisements the contents of which are prohibited by Section 5(g) of the Pennsylvania Human Relations Act (Act),*fn1 in that those contents specify or in some manner express the race, color, religious creed, ancestry, age, sex or national origin of the person placing the advertisement.

The facts in this case are quite simple. The Press prints a "Situations-Wanted" classification in its classified advertisement pages as a service to its readers. Advertising space is, of course, paid for by the advertisers. Situation-wanted advertisements provide a means by which persons seeking employment may communicate their qualifications and job aspirations to the employing public at large. Usually, such an advertisement consists of a brief description of the job-seeker and the type of job he or she desires. The Press publishes these advertisements exactly as they are submitted. Beyond listing the ads alphabetically, the Press in no way alters any ad nor attempts to classify them further than by the simple "Situations-Wanted" classification.

Section 5 of the Act provides, inter alia :

It shall be an unlawful discriminatory practice, unless based upon a bona fide occupational qualification, or in the case of a fraternal corporation or association, unless based upon membership in such association or corporation, or except where based upon applicable security regulations established by the United States or the Commonwealth of Pennsylvania:

(a) For any employer because of the race, color, religious creed, ancestry, age, sex, national origin or non-job related handicap or disability of any individual to refuse to hire or employ, or to bar or to discharge from employment

[ 31 Pa. Commw. Page 221]

    such individual, or to otherwise discriminate against such individual with respect to compensation, hire, tenure, terms, conditions or privileges of employment, if the individual is the best able and most competent to perform the services required.

(e) For any person, whether or not an employer, employment agency, labor organization or employe, to aid, abet, incite, compel or coerce the doing of any act declared by this section to be an unlawful discriminatory practice, or to obstruct or prevent any person from complying with the provisions of this act or any order issued thereunder, or to attempt, directly or indirectly, to commit any act declared by this section to be unlawful discriminatory practice.

(g) For any individual seeking employment to publish or cause to be published any advertisement which specifies or in any manner expresses his race, color, religious creed, ancestry, age, sex or national origin, or in any manner expresses a limitation or preference as to race, color, religious creed, ancestry, age, sex or national origin of any prospective employer.

On March 11, 1975, the Commission initiated a complaint charging the Press with violating Section 5(e)*fn2 of the Act by having aided and abetted the doing of an unlawful discriminatory act prohibited by Section 5(g).

After attempts at conciliation failed, a public hearing was held by the Commission on August 6, 1975, which resulted in a unanimous recommendation by the Hearing Panel that the full Commission find in favor

[ 31 Pa. Commw. Page 222]

    of the complainant. The cease and desist order was subsequently issued by the Commission.

An indication of the type of advertisement found by the Commission to violate Section 5(g) can be ascertained from the specific examples set forth in the Hearing Panel's findings of fact. These examples were drawn from stipulated exhibits which included the Press' "Situation-Wanted" columns from Sunday, June 1, 1975 to Thursday, June 26, 1975:

College Grad -- Born again Christian with Bachelor's Degree and seven yrs. sales and marketing mgmt. experience seeking work with Christian business or organization. . . .*fn3

White woman -- desires day work, office cleaning.*fn4

Parolee -- White needs employment to be released. Licensed steam boiler and engineer. . . .*fn5

Salesman -- Age 30, looking for career in Pittsburgh, start immediately, 15 years sales experience. . . .*fn6

What can I do for you? Recent college grad, good looking, twenty-five years old, B.S. in Business Administration, seeks entry level management position.*fn7

Man -- mature, accounting, bookkeeping, office management, desires position in these or related fields.*fn8

[ 31 Pa. Commw. Page 223]

It is obvious at a glance that the contents of these advertisements are in contravention of the letter of Section 5(g).*fn9 The Press does not contend otherwise. It does, however, challenge the constitutional validity of Section 5(g) on the basis of the First and Fourteenth Amendments to the United States Constitution.*fn10

Initially, the Commission raises the question of the Press' standing to challenge Section 5(g). We are certain that the Press does have standing to challenge that Section of the Act. The order entered against the Press was the result of the Commission's determination that the Press had aided and abetted the violation of Section 5(g). In the words of the Court in

[ 31 Pa. Commw. Page 224421]

U.S. 809 (1975), was completely extinguished in Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 96 S. Ct. 1817 (1976) (hereinafter Virginia Pharmacy). In Virginia Pharmacy the Court stated:

Our question is whether speech which does no more than propose a commercial transaction' . . . is so removed from any exposition of ideas' . . . and from truth, science, morality, and arts in general, in its diffusion of liberal sentiments on the administration of Government' . . . that it lacks all protection. Our answer is that it is not.

425 U.S. at 762, 96 S. Ct. at 1826.

The Court recognized that the basic need for the free flow of commercial information for the proper functioning of a free market economy "suggests that no line between publicly 'interesting' or 'important' commercial advertising and the opposite kind could ever be drawn." 425 U.S. at 765, 96 S. Ct. at 1827.*fn12 The conclusion that purely commercial speech is not unprotected per se has been emphatically reaffirmed by the Court in Linmark Associates, Inc. v. Township of Willingboro (hereinafter Linmark), U.S. , 45 U.S.L.W. 4441 (May 2, 1977), where an ordinance banning "For Sale" and "Sold" signs for the purpose of stemming "panic selling" and "white flight" from the community was held unconstitutional under Virginia Pharmacy.

[ 31 Pa. Commw. Page 226]

Although it is thus clear that situation-wanted advertisements are not unprotected per se, it remains to be decided whether the contents of such an ad which run afoul of Section 5(g) may be constitutionally suppressed. The Court in Virginia Pharmacy recognized that commercial speech is not immune from regulation, 425 U.S. at 770, 96 S. St. at 1830, and may require less protection than other varieties of speech in order to insure an unimpaired "flow of truthful and legitimate commercial information." 425 U.S. at 771-72 n. 24, 96 S. Ct. at 1830 n. 24.

In attempting to show that the cease and desist order in this case is pursuant to such a valid regulation of commercial speech, the Commission relies upon the decision in Pittsburgh Press Co. v. Pittsburgh Commission on Human Relations (hereinafter Press I), 413 U.S. 376 (1973). In Press I, the Court upheld an order directing the Press to cease and desist the publication of help-wanted advertisements under sex-based classification headings. In particular the Commission relies on the Court's statement that --

Any First Amendment interest which might be served by advertising an ordinary commercial proposal and which might arguably outweigh the governmental interest supporting the regulation is altogether absent when the commercial activity itself is illegal and the restriction on advertising is incidental to a valid limitation on economic activity.

Press I at 389.

Later cases have also alluded to the validity of advertising restrictions related to the illegality of the transaction proposed by the advertisement. Virginia Pharmacy at 771, 96 S.Ct. at 1825; Bigelow at 821. However, not since Press I has the Court actually dealt with a case involving a ban on commercial speech "incidental" to an underlying valid limitation on economic

[ 31 Pa. Commw. Page 227]

    activity or the prevention of an illegal transaction.*fn13

There is no doubt that the underlying commercial activity sought to be banned by Section 5(a) is illegal. The Press in no way challenges the Section 5(a) prohibition of discrimination in employment on the basis of race, color, religious creed, ancestry, age, sex or national origin. The quote from Press I would indicate that we then need only to determine whether the advertising restrictions of Section 5(g) are "incidental" to that prohibition. If it is, then 5(g) would be valid and any need for balancing obviated. The posture of Press I and the decisions in later cases convince us, however, that this is no longer the appropriate "test."

Press I must be read in light of the fact that the Press did not there challenge the section of the Pittsburgh Ordinance which prohibited the indicating of sex discrimination in advertising by employers, employment agencies, and labor unions. The Press challenged only that section of the ordinance which made it unlawful for any person to aid in the doing of any act declared to be an unlawful employment practice by the ordinance. Because the Press conceded the illegality of not only sex discrimination in employment but also the advertising of same, and because the facts

[ 31 Pa. Commw. Page 228]

    in Press I revealed that the Press was clearly aiding in the propagation of such advertising, the Court was not compelled to formulate any refined "test" for the validity of speech restrictions related to activities which the government may legitimately regulate or prohibit. The word "incidental" was a sufficient description of the relationship under the circumstances of Press I.

Two years after Press I, the Court decided the Bigelow case. Although it was eventually determined that the prohibition of advertising the availability of abortions did not relate in any way to a valid underlying regulation of conduct under the particular facts of that case,*fn14 the Bigelow case did prompt the Court to reformulate its "test" or standard of review for this type of commercial speech case. The Court stated:

To the extent that commercial activity is subject to regulation, the relationship of speech to that activity may be one factor, among others, to be considered in weighing the First Amendment interest against the governmental interest alleged.

Bigelow at 826.

We believe that a balancing analysis is the appropriate standard of review for the present case. The factors to be weighed are the opposing First Amendment and governmental interests, the effectiveness of the speech restriction in promoting the underlying valid regulation, and the extent of any incidental restrictions on legitimate forms of commercial speech.*fn15

[ 31 Pa. Commw. Page 229]

The Commonwealth's asserted interest in the prevention of employment discrimination based on race, color, religious creed, ancestry, age, sex or national origin is certainly a substantial one. Pitted against it is the job-seeker's interest in being able to fully, yet truthfully,*fn16 utilize the press to "advertise" himself or herself in that manner and by such terms as he or she believes will be most efficacious in producing the desired

[ 31 Pa. Commw. Page 230]

    result. That this interest must not be minimized can be seen by looking at its component parts. As a pure matter of expression, there is the basic interest of the individual in being able to tell anyone who will listen just who and what that individual is: to be able to say "I am black" as well as "I am a college graduate" or "I am male" as well as "I am ambitious." The purpose for such expression provides, in the present case, an additional element of import. The Supreme Court long ago recognized the great magnitude of the individual's interest in obtaining employment and earning a living. Truax v. Raich, 239 U.S. 33 (1915).*fn17 Here we are not dealing with the ordinary transaction between a "seller hawking his wares and a buyer seeking to strike a bargain." Virginia Pharmacy at 425 U.S. 781, 96 S.Ct. at 1835 (Rehnquist, J., dissenting). We are dealing with the efforts of individuals to sell the only thing that they have to offer: their labor. For the users of the situation wanted column, often the least skilled and most desperate job-seekers, the quest for employment may cause the liveliest political or social controversy of the day to shrink to insignificance by comparison.*fn18

We now come to the question of the relationship of the speech involved here to the commercial activity

[ 31 Pa. Commw. Page 231]

    subject to regulation. Bigelow at 826. The Act does not prohibit individuals from accepting or rejecting jobs on the basis of one of the "forbidden criteria." Thus, the relationship which we must focus upon is the relationship of the speech involved here to illegal discrimination by employers. Stated another way, we must assess the extent to which Section 5(g) promotes the fulfillment of the purpose of Section 5(a).

The Commission asserts that permitting job-seekers to specify their race or sex, for example, will provide the prejudiced employer with an easy means to perpetrate discriminatory hiring. We do not believe that such an advertisement provides an employer so disposed with any easier or better tool for discrimination than does a resume or job interview.*fn19 Here, we must distinguish Press I. In Press I, the advertisers and the Press were classifying jobs on the basis of sex. Discriminatory hiring was facilitated because persons of one gender were discouraged from even applying for a job that was advertised as being of "interest" only to persons of the opposite gender. As the Court stated in Press I at 387, "By implication, at least, an advertiser whose want ad appears in the 'Jobs -- Male Interest' column is likely to discriminate against women in his hiring decisions." Moreover, the positive relationship between the advertisements in Press I and

[ 31 Pa. Commw. Page 232]

    sex discrimination in employment was reflected in the record. Press I at 381 n.7. In the present case, we are dealing with individuals who choose to classify themselves according to race, sex, or one of the other traits. There is no evidence in the record that ads of the type found objectionable by the Commission result in employment discrimination, nor do such ads imply, as did those in Press I, that any employer is likely to discriminate in hiring. Section 5(g) does not directly affect hiring practices one way or another. It affects them only through the reactions it is assumed employers will have to the free flow of information. See Virginia Pharmacy at 425 U.S. 755, 96 S.Ct. at 1820. And we believe, moreover, that the Commission's assumptions as to employer reactions are narrowly one-sided and thereby fail to draw attention to the impact of Section 5(g) on other, legitimate aspects or uses of the commercial speech involved here.

The Commission apparently assumes that only the prejudiced employer will react to or affirmatively utilize the "objectionable" characteristic information in these ads. This overlooks the possibility that a fair-minded employer may react in the negative to any ad that specifies any race, sex, religion, age or national origin. Such an employer may seek to avoid hiring individuals who are themselves prejudiced. More importantly, the Commission overlooks a quite legitimate use of this type of characteristic information. "Equal Opportunity" and "Affirmative Action" employers may use the information in such ads to find more minority applicants to interview for a position.*fn20 Even

[ 31 Pa. Commw. Page 233]

    an ad which boldly "specifies" such information has this legitimate use.

Moreover, Section 5(g) impedes the flow of greater amounts of legitimate commercial information by banning ads which "in any manner" express any of the "forbidden" characteristics. A job-seeker's name is, beyond doubt, a completely legitimate item of information in a situation-wanted ad. Yet Section 5(g) is obviously offended in one or more respects by, just as examples: Svenson, Weinstein, Tanaka, Kowalski, Garcia, O'Brien, or Schmidt. Most given names, such as Dennis*fn21 and Joyce,*fn22 leave little more doubt as to gender than do the titles "Mr.," "Mrs.,"*fn23 and even "Ms."

Section 5(g) would also suppress vital information relating to job qualifications. A person's alma mater, be it high school or college level, can inform an employer of the quality of education a job-seeker has had. Yet 5(g) would prohibit the inclusion in an ad of "North Catholic High School" or "Oral Roberts University." For indicating race, "Morgan State" or "Grambling" would offend 5(g). The graduate of the all-female Carlow College would likewise transgress 5(g) by advertising that fact. Another important job qualification is experience. However, one with as very much experience as 30*fn24 or 55*fn25 years may find that this excellent qualification cannot be advertised because it also expresses a good indication of relative age. The baby-sitter who describes herself as an "experienced mother,"*fn26 perhaps a very persuasive qualification to many with young children, clearly violates

[ 31 Pa. Commw. Page 2345]

(g). Finally, 5(g) would require the "Salesman,"*fn27 "Body man,"*fn28 "Handyman,"*fn29 and "Cleaning Lady"*fn30 to find some other way to denote their chosen occupation without connoting gender. While it may very well be completely valid to require an employer-advertiser to substitute "-person" as the suffix of these words when used to describe a job, to compel an individual to describe himself or herself in such stilted and sterile language, or forgo speaking at all, smacks of the imposed linguistic conformity of an Orwellian nightmare.

The result of our balancing analysis should, at this point, be clear. We conclude that the Commission has failed to show that Section 5(g) in any way significantly furthers the Commonwealth's concededly substantial interest in eradicating employment discrimination. We also conclude, on the other hand, that application of Section 5(g) would have the effect of significantly impairing the flow of legitimate and truthful commercial information. In view of these conclusions, it is clear that the balance in this case must be tipped in the favor of the First Amendment interest of the advertisers and against the constitutional validity of the challenged portion of Section 5(g).*fn31 We hold, therefore, that the Commission is without power to prohibit the inclusion in any situation-wanted

[ 31 Pa. Commw. Page 235]

    advertisement of any specification or expression of the advertiser's race, color, religious creed, ancestry, age, sex or national origin. As a natural consequence, we further hold that the cease and desist order entered against the Press for aiding and abetting the publication of such situation-wanted advertisements is constitutionally invalid. We therefore reverse.

Order

And Now, this 21st day of July, 1977, the Order of the Pennsylvania Human Relations Commission, Docket No. E-8528, dated June 27, 1975, is hereby reversed.

Disposition

Reversed.


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