No. 79 W.D. Appeal Docket, 1983, Appeal from the June 27, 1983 Order of the Commonwealth Court at No. 2651 C.D. 1981, reversing the Order of the Court of Common Pleas, Civil Division, of Allegheny County at No. S.A. 5 of 1981, dated September 23, 1981, 75 Pa. Commw. Ct. 366,
Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson and Zappala, JJ. Nix, C.j., files an Opinion in Support of Affirmance in which Larsen, J., joins. Larsen, J., files an Opinion in Support of Affirmance in which Nix, C.j., joins. Hutchinson, J., files an Opinion in Support of Affirmance. Flaherty, J., files an Opinion in Support of Reversal in which McDermott and Zappala, JJ., join. Papadakos, J., did not participate in the consideration or the decision of this matter.
The Court being equally divided, the Order of the Commonwealth Court is affirmed.
OPINION IN SUPPORT OF AFFIRMANCE
The issue in this appeal is whether the complainant in an employment discrimination case should be required as part of his or her prima facie case to prove he or she was best able and most qualified to perform the services required. For the reasons which follow I would affirm the order of the Commonwealth Court and hold that once the complainant makes out a prima facie case by satisfying the four prong test of McDonnell-Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), adopted by this Court in General Electric Corp. v. Pennsylvania Human Relations Commission, 469 Pa. 292, 365 A.2d 649 (1976), the burden of production shifts to the employer to introduce evidence of a legitimate, nondiscriminatory reason for not hiring the complainant.
Appellee Emily E. Davis Winn ("Winn"), an employee of appellant Trans World Airlines, Inc. ("TWA") since March 1967 and a Reservation Sale Agent in TWA's Pittsburgh office since July 1975, applied for the position of Senior Sales Representative in the Pittsburgh Office in March, 1976.*fn1 Winn, a black female, was not interviewed; a white male was hired for the position. In February 1977, Winn
was interviewed but not hired for the position of Field Training Instructor. The successful candidate was a white female. In April 1977 Winn applied for one of seven Team Coordinator positions. TWA interviewed her but selected four white males and three white females for the openings. Winn sought the position of Cargo Account Executive in June 1977. She was not interviewed and was told by her regional manager that a female would not be considered for the job. Finally, in April 1978 Winn again applied for the position of Senior Sales Representative. She was interviewed but TWA selected a white male.
Winn filed a complaint with the Pittsburgh Commission on Human Relations ("Commission") on April 28, 1978 charging TWA with race and/or sex discrimination for failure to advance her and seeking a promotion and back pay. Efforts to settle the dispute by conciliation failed. The Commission, after conducting public hearings in May and June of 1979, entered an order on December 16, 1980 requiring TWA to cease and desist from discriminating against its employees on the basis of sex or race and directing TWA to pay Winn the additional wages she would have earned as a Senior Sales Representative from March 1976 until the date TWA no longer employed such representatives in its Pittsburgh office.*fn2
TWA appealed the Commission's decision to the Court of Common Pleas of Allegheny County, which reversed. Winn subsequently appealed to the Commonwealth Court, which reversed the Court of Common Pleas and reinstated the Commission's order. This Court granted TWA's petition for allowance of appeal.
In General Electric Corp. v. Pennsylvania Human Relations Commission, supra, this Court addressed the question whether Section 5(a) of the Pennsylvania Human Relations Act, Act of October 27, 1955, P.L. 744, § 5(a), as amended, 43 P.S. § 955(a), imposes upon a complainant the burden of proving as part of a prima facie case that he or she was "the best able and most competent to perform the services required." In that case the three female complainants undertook no such showing to establish their sexual discrimination complaint. The Pennsylvania Human Relations Commission ruled that where the discriminatory practice consists of a failure to evaluate a female worker's qualifications and where there is evidence that experience was not the employment criterion, the above language of Section 5(a) was not applicable. The Commonwealth Court in General Electric determined that the complainants failed to meet their burden of proof. Six members of this Court as then constituted joined in the reversal of the Commonwealth Court concluding that the "best able" proviso did not shift the burden of proof upon complainants to affirmatively demonstrate that they were "the best able and most competent to perform the services required" before a finding of discrimination could be made.*fn3 Thus for the point of law for which that case is cited by the Opinion in Support of Reversal, it is misleading to suggest that it only expressed a plurality view. On the issue here presented the General Electric six justices were in agreement.*fn4 Our jurisprudence
cannot survive, and certainly cannot provide a solid basis for an enhanced social order, if it is made subject to every change in the composition of this Court.*fn5 E.g., Commonwealth v. Crenshaw, 504 Pa. 33, 470 A.2d 451 (1983); Commonwealth v. Truesdale, 502 Pa. 94, 465 A.2d 606 (1983); Commonwealth v. Alexander, 435 Pa. 33, 255 A.2d 119 (1969); Commonwealth v. Woodhouse, 401 Pa. 242, 164 A.2d 98 (1960); Burke v. Pittsburgh Limestone Corporation, 375 Pa. 390, 100 A.2d 595 (1953); In re Borsch's Estate, 362 Pa. 581, 67 A.2d 119 (1949); In re Burtt's Estate, 353 Pa. 217, 162, 44 A.2d 670 (1945); Monongahela Street Railway Co. v. Philadelphia Company, 350 Pa. 603, 39 A.2d 909 (1944); see Smith v. Glen Alden Coal Company, 347 Pa. 290, 32 A.2d 227 (1943); Colonial Trust Company v. Flanagan, 344 Pa. 556, 25 A.2d 728 (1942).
The Opinion in Support of Reversal seeks to give legitimacy to its position by arguing that the underpinnings of General Electric have been eroded. I suggest that this fabrication of "legitimacy" is vapor thin. First, the argument centers only upon the analysis of the view of three of the seven members of the Court. General Electric Corp. v. Pennsylvania Human Relations Commission, supra 469 Pa. at 295, 365 A.2d at 650 (opinion of Pomeroy, J., announcing the judgment of the Court, joined by Eagen and
O'Brien, JJ.). Moreover the Pomeroy view did not rely solely upon the federal cases.*fn6
Justice Pomeroy set forth as an independent ground "certain pragmatic considerations":
The employer has far easier access to the facts which must be established in order to prove the relative qualifications of those employees who were retained and those employees who were laid off in any given work curtailment situation. Where objective criteria have been employed, the employer is in the better position to demonstrate which standards were used and whether they were applied in a nondiscriminatory manner. Where employment decisions have been based upon the employer's subjective assessments, it is the employer alone who can articulate the rationale behind his decisions.
To cast the burden of establishing one's relative qualifications on the complainant would, in both objective and subjective situations, impose significant obstacles of time and expense which could serve to deter vigorous enforcement of the rights conferred by the statute. In the case where subjective standards have been employed the burden of proving relative qualifications might well be an impossible one.
General Electric Corp. v. Pennsylvania Human Relations Commission, supra, 469 Pa. at 306-307, 365 A.2d at 657 (opinion of Pomeroy, J., announcing the judgment of the Court, joined by Eagen and O'Brien, JJ.)
This argument is still as persuasive as it was when initially articulated. Moreover it is consistent with the traditional rules of evidence. See, e.g., Beckert v. Warren, 497 Pa. 137, 439 A.2d 638 (1981); Corabi v. Curtis Publishing Co., 441 Pa. 432, 273 A.2d 899 (1971); Barrett v. Otis Elevator Co., 431 Pa. 446, 246 A.2d 668 (1968); Izzi v. Philadelphia Transportation Co., 412 Pa. 559, 195 A.2d 784 (1963); Waters v. New Amsterdam Casualty Co., 393 Pa. 247,
A.2d 354 (1958); Skeen v. Stanley Co. of America, 362 Pa. 174, 66 A.2d 774 (1949); MacDonald v. Pennsylvania R. Co., 348 Pa. 558, 36 A.2d 492 (1944); Meth v. Broad Street & Bonded Bldg. & Loan Ass'n., 346 Pa. 331, 30 A.2d 119 (1943); Valles v. Peoples-Pittsburgh Trust Co., 339 Pa. 33, 13 A.2d 19 (1940); Fazio v. Pittsburgh Rys. Co., 321 Pa. 7, 182 A. 696 (1936); McCormick, Evidence § 337 (2d ed. 1972); 9 J. Wigmore, Evidence §§ 2486, 2509 (3d ed. 1940).
The argument of the Opinion in Support of Reversal suggesting that the General Electric standard could amount to "reverse discrimination" is an emotional ploy which will not stand scrutiny. The employer is only required to demonstrate that its employment decision was not tainted by the alleged bias. This is not an onerous or unreasonable burden. It is in fact the minimum requirement of an Act which has as its stated purpose:
It is hereby declared to be the public policy of this Commonwealth to foster the employment of all individuals in accordance with their fullest capacities regardless of their . . . sex . . . and to safeguard their right to obtain and hold employment without such discrimination [and] to assure equal opportunity to all individuals . . . .
Act of October 27, 1955, P.L. 744, § 2, as amended, 43 P.S. § 952(b).
In the view expressed by the Opinion in Support of Reversal, it is implied that General Electric places the burden of persuasion upon the employer to prove that complainant was not the best able and most competent to perform the services required. To the contrary, I view the General Electric holding as merely placing the burden of production of evidence regarding the employer's reasons for rejecting the plaintiff. This latter approach was followed by the Commission which concluded, after reviewing all of the evidence, that Ms. Winn was the victim of unlawful discrimination on the basis of sex and race and, therefore, entitled to recovery.
If the Act is to be given any efficacy, the employer must be required to set forth its reasons for the rejection of the complainant. Once the employee has established that he or she is a member of a protected minority, that he or she applied for the position and was in fact qualified and that another applicant was selected to fill the position, the employer at that point must come forward and meet the burden of producing evidence to establish that the judgment was not as a result of bias. This is the procedure that was followed before the Commission and the Commonwealth Court appropriately concluded:
75 Pa. Commw. 366, 375, 462 A.2d 301, 305 (1983) (citations omitted).
I, therefore, would affirm the Order of the Commonwealth Court.
Opinion IN SUPPORT OF AFFIRMANCE
Mr. Justice Flaherty would overturn this Court's seminal decision of General Electric Corp. v. Pennsylvania Human Relations Commission (PHRC), 469 Pa. 292, 365 A.2d 649 (1976), and would, in the process, discard a consistent body of precedent in the Commonwealth Court that has consistently applied the ...