No. 42 March Term, 1978, Appeal from the Order of the Commonwealth Court of Pennsylvania at No. 1275 C.D. 1976 reversing the Order of the Pennsylvania Human Relations Commission at Commission Docket No. E-8525
Sanford Kahn, Gen. Counsel, Pa. Human Relations Commission, John E. Benjes, Pa. Human Relations Commission, Robert S. Mirin, Harrisburg, for appellant.
Robert H. Shoop, Jr., Jane A. Lewis, Thorp, Reed & Armstrong, Pittsburgh, for appellee.
Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix, Manderino, Larsen, JJ. Pomeroy, former J., did not participate in the decision of this case. Roberts, J., filed a concurring opinion. Nix, J., filed a dissenting opinion.
This appeal is from the order of the Commonwealth Court reversing the order of the Pennsylvania Human Relations Commission (Commission), and declaring unconstitutional that portion of Section 5(g) of The Pennsylvania Human Relations Act, 43 P.S. § 955(g). Section 5(g) prohibits the publication of advertisements for employment expressing the race, color, religious creed, ancestry, age, sex, or national origin of the advertiser. Pittsburgh Press Co. v. Comm., Human Relations Commission, 31 Pa. Commw. 218, 376 A.2d 263 (1977).
The circumstances surrounding this appeal are as follows. On March 15, 1975, the Commission charged the Pittsburgh Press Company (Press) with "maintain[ing] a pattern and practice of aiding and abetting the doing of an unlawful discriminatory act" in violation of Section 5(e) of The Pennsylvania Human Relations Act. According to the Commission,
the Press violated Section 5(e) of the Act by publishing "situation wanted" advertisements alleged to be unlawful under Section 5(g) because the ads identified the advertiser's sex, race, religion, or age.
The Pittsburgh Press is a newspaper of general circulation throughout the greater Pittsburgh metropolitan area. The "situation wanted" section of the Press' classified advertisements provides a vehicle for persons seeking employment to describe themselves, their job qualifications, and the kind of employment they are seeking. The Press accepts and publishes these ads exactly as submitted by the advertisers.
On June 27, 1975, following an investigation from which the Commission determined that there was probable cause to credit the allegations contained in the complaint referred to above, the Commission issued a final order requiring the Press to cease and desist from publishing "situation wanted" advertisements, the contents of which are prohibited by Section 5(g).
On appeal, the Commonwealth Court reversed the Commission's final order, and ruled that Sub-section 5(g) was unconstitutional. We granted the Commission's petition for allowance of appeal, and this appeal followed.
The Pennsylvania Human Relations Act, Act of October 27, 1955, P.L. 744, § 1, as amended 43 P.S. §§ 951, et seq., establishes it as
". . . the public policy of this Commonwealth to foster the employment of all individuals in accordance with their fullest capacities regardless of their race, color, religious creed, ancestry, handicap or disability, use of guide dogs because of blindness of the user, age, sex, or national origin, and to safeguard their right to obtain and hold employment without such discrimination, to assure equal opportunities to all individuals and to safeguard their rights at places of public accommodation and to secure commercial housing regardless of race, color, religious creed, ancestry, sex, handicap or disability, use of guide dogs because of blindness of the user or national origin."
To further this public policy, Section 5 of the Act makes certain discriminatory employment practices unlawful. 43 P.S. § 955(a) through (j). Among other things, in 5(g), the Act makes it unlawful employment discrimination
"[f]or 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 or national origin, or in any manner expresses a limitation or preference as to the race, color, religious creed, ancestry, age, sex or national origin of any prospective employer." 43 P.S. § 955(g).
Section 5(e) also makes it unlawful
"[f]or 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, . . . ."
The Commission found that by accepting and presenting "situation wanted" advertisements which included references to the criteria declared unlawful by Section 5(g), the Press had "aided and abetted" the unlawful employment practice proscribed by that section, the Press was therefore found to be in violation of Section 5(e).
The Commonwealth Court recognized that the advertisements which formed the basis of the Commission's complaint ...