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decided: August 9, 1982.


Appeal from the Order of the Pennsylvania Human Relations Commission in the case of Joyce A. English v. Philadelphia Electric Company, No. E-12163.


Leonard J. Cook, with him John F. Smith, III, Dilworth, Paxson, Kalish & Levy, for petitioner.

Benjamin G. Lipman, Assistant General Counsel, with him Robert S. Mirin, General Counsel, for respondents.

Alan K. Cotler, Pepper, Hamilton & Scheetz, for Amicus Curiae, American Civil Liberties Foundation of Pennsylvania.

President Judge Crumlish, Jr. and Judges MacPhail and Blatt, sitting as a panel of three. President Judge Crumlish, Jr. and Judges Rogers, Blatt, Williams, Jr., Craig, MacPhail and Doyle. Opinion by Judge MacPhail.

Author: Macphail

[ 68 Pa. Commw. Page 214]

On April 26, 1977, Joyce English applied for the position of Customer Service Representative with the Philadelphia Electric Company (PECO). After she passed successfully all pre-employment tests and otherwise demonstrated her fitness for the job she was seeking, she was referred to PECO's medical department for a physical examination. The medical department uses a weight chart to screen prospective employees. The chart sets forth desirable weights for males and females of a given height and age. The weight standards are liberally administered with a 40 pound tolerance permitted on either side of the desirable weight standard, and, if a person's physical frame is such that an even heavier weight can be accommodated, the standards are not rigidly enforced against such persons.

On the date in question, Ms. English was 27 years old, 5' 8" tall and weighed 341 pounds.*fn1 According to PECO's weight chart, the desirable weight for Ms. English was 140 pounds. The medical department

[ 68 Pa. Commw. Page 215]

    classified Ms. English as unsuitable for work at PECO because of her abnormal weight. PECO, thereupon, rejected her application for employment.

Ms. English then filed a complaint with the Pennsylvania Human Relations Commission (HRC) alleging that PECO had refused to hire her "because of her handicap/disability, obesity which does not substantially interfere with her ability to perform the essential functions of the job." PECO responded to the complaint stating that Ms. English was refused employment because she failed to meet (PECO's) medical standards required of all applicants for employment, and denies that obesity is a handicap/disability under the Pennsylvania Human Relations Act (Act).*fn2

After an extensive hearing, the HRC found in favor of Ms. English and ordered PECO to 1) cease and desist from discriminating against any handicapped or disabled applicant for employment unless such handicap or disability would substantially interfere with the applicant's ability to perform the job he or she is seeking 2) pay to Ms. English all sums to which she would have been entitled had she been hired on April 26, 1977 together with interest and 3) offer her the next available Customer Services Representative position or another position comparable thereto in terms of salary, promotional opportunities and duties.

PECO appealed from that order to this Court. The case was argued initially before a panel of this Court and then was directed for reargument. Counsel submit that this is a case of first impression in Pennsylvania. We agree.

Statutory Background

Pennsylvania has had an anti-discrimination statute for upwards of 25 years. Until 1974, Section 5(a) of

[ 68 Pa. Commw. Page 216]

    the Act, 43 P.S. § 955(a) prohibited discriminatory practices by employers because of race, color, religious creed, ancestry, age, or national origin. In 1974, "non-job related handicap or disability" was added as a prohibited basis for the denial of employment. The legislative history regarding the amendment is sparse, indeed, but the House Legislative Journal,*fn3 March 5, 1974, p. 3758 et seq. indicates that the need for such legislation was dramatized when some legislators undertook to perform their legislative duties while in wheelchairs. The only recorded comments of the legislators with respect to the pending bill were references to the blind, deaf, wheelchair patients and epileptics.

The 1974 amendment to the Act does not define handicap or disability but it does define "non-job related handicap or disability" as "any handicap or disability which does not substantially interfere with the ability to perform the essential functions of the employment which a handicapped person applies for, is engaged in or has been engaged in. Uninsurability or increased cost of insurance under a group or employee insurance plan does not render a handicap or disability job related." Section 4(p) of the Act, 43 P.S. § 954(p). Since the definition uses the terms it purports to define, it is of little help in a resolution of one of the critical issues in this case, to wit, is obesity or morbid obesity a handicap or disability?

Shortly after Ms. English filed her complaint, HRC undertook to define a "handicapped or disabled person" by the promulgation of regulations which were

[ 68 Pa. Commw. Page 217]

    not finally adopted until 1978. The pertinent regulation is found at 16 Pa. Code § 44.4.*fn4

[ 68 Pa. Commw. Page 218]

Pertinent Findings and Conclusions of HRC

From the evidence received at the hearing*fn5 the HRC made the following critical findings of fact, all of which are supported by substantial evidence in the record:

Findings of Fact

10. Joyce English was denied a CSC position by PECO for the sole reason that she failed the medical exam due to her obesity. (Exh. C-4: pp. 14-15, N.T. 167, 187, 194, 2.7)

11. PECO's medical department failed Joyce English in her medical examination because of their belief that massive obesity to the ...

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