decided: November 29, 1984.
EMILY E. DAVIS WINN, APPELLEE,
TRANS WORLD AIRLINES, INC., APPELLANT
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.
Author: Per Curiam
[ 506 Pa. Page 140]
The Court being equally divided, the Order of the Commonwealth Court is affirmed.
[ 506 Pa. Page 141]
OPINION IN SUPPORT OF AFFIRMANCE
NIX, Chief Justice.
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
[ 506 Pa. Page 142]
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.
[ 506 Pa. Page 143]
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
[ 506 Pa. Page 144]
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
[ 506 Pa. Page 145]
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,
[ 506 Pa. Page 146144]
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.
[ 506 Pa. Page 147]
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 principles and guidelines enunciated by that decision. This precipitous and dangerous
[ 506 Pa. Page 148]
rejection of General Electric is predicated upon a misunderstanding of the holding and reasoning of that decision, as well as of its precedental value as a majority opinion, the construction of which has been presumptively approved by the General Assembly. The misunderstanding is compounded by a superficial and fundamentally flawed analysis of federal precedent in the title VII/employment discrimination area.*fn1a Having erroneously rejected General Electric, the Opinion in Support of Reversal then, in two terse sentences,*fn2a would impose a significant -- perhaps insurmountable -- additional burden upon a complainant's cause of action in an employment discrimination case under the Pennsylvania Human Relations Act of 1955 (hereinafter the Act),*fn3a namely, that the complainant must demonstrate, as part of his or her prima facie case, that he or she was the "best able and most competent" applicant to perform the services required for the job. Under this approach, an employer who is demonstrated to have intentionally discriminated against an applicant on the basis of race or sex,*fn4a and who never undertook a comparative evaluation of the respective applicants because of the racial or gender bias, may nevertheless be insulated from liability under the Act because the complainant may not be able to prove that he or she was the "best able and most competent" of the applicants for the job. General Electric wisely rejected such an
[ 506 Pa. Page 149]
interpretation of the Act as offensive to its spirit and its humanitarian objectives, and as being at odds with the intent of the legislature.
Initially, Mr. Justice Flaherty improperly characterizes General Electric as "a plurality decision by this Court." At 160. To the contrary, six members of this Court agreed with Justice Pomeroy's interpretation of the "best able and most competent" proviso of section 5(a) of the Act, 43 P.S. § 955(a).*fn5a
The employer in General Electric had argued that the phrase "if the individual is the best able and most competent to perform the services required" imposed upon the complainant the burden of proving, as part of a prima facie case, that he or she was the best able and most competent of the applicants. 469 Pa. at 301, 365 A.2d at 654. Justice Pomeroy stated:
This Court has not heretofore had occasion to consider the "best able and most competent" clause of Section 5(a). In doing so we are, of course, required to ascertain as best we can what the legislature intended to express . . . . In this process we are to be guided by the directive of the legislature in the Act itself that "[t]he provisions of [PHRA] shall be construed liberally for the accomplishment of the purposes thereof." Act of October 27, 1955, P.L. 744, as amended 43 P.S. § 962. These purposes are legislatively declared in the Act as follows:
"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 [race or] sex . . . and to safeguard their right to obtain and hold employment without such
[ 506 Pa. Page 150]
discrimination [and] to assure equal opportunities to all individuals . . . ." Act of October 27, 1955, P.L. 744, § 2 as amended 43 P.S. § 952(b).
Thus approached, the choice of placing on a complainant the burden of proving the superiority of his or her abilities as part of establishing a prima facie case, on the one hand, or of requiring an employer to assert the "best able" proviso in defending a challenge to an employment decision becomes relatively easy, for we must adopt a construction which, without doing violence to the language of the statute, best promotes the goal of equal employment opportunities. We believe that the legislature intended that it is the employer who should shoulder the burden of demonstrating that the complainant was not "best able and most competent to perform the services required."
469 Pa. at 302, 365 A.2d at 654.
Justice Pomeroy was joined by Justices Eagen and O'Brien. Chief Justice Jones dissented without opinion. The concurring opinion of Justice Manderino, joined by Justices Roberts and Nix, quite clearly agrees with Justice Pomeroy as to the above-quoted construction of section 5(a) of the Act. The only point of disagreement with Justice Pomeroy's opinion was that the concurring members of the Court would have gone further and would have held that the Act imposed an affirmative obligation on an employer to dispel a discriminatory atmosphere and attitudes held by employees of the defendant/employer where such atmosphere/attitudes "chilled" the employment rights of minority employees, even in the absence of evidence causally linking such atmosphere/attitudes with discriminatory policies or practices of the employer. 469 Pa. at 317-19, 365 A.2d at 662-63. (Manderino, J., concurring, joined by Roberts and Nix, JJ.) ("there is one important aspect of this case that I feel should be considered by the Commonwealth Court when the case is remanded for further proceedings.") Accordingly, General Electric is a majority opinion of this Court on the issue of the construction of the "best able
[ 506 Pa. Page 151]
and most competent" proviso of section 5(a) of the Act. The Commonwealth Court has certainly accepted and applied General Electric as a majority decision in a consistent body of case law that has developed in that court since 1976.*fn6a
For reasons I shall explain below, I do not agree with Mr. Justice Flaherty that, in light of federal precedent, General Electric was wrongly decided. However, even if General Electric misread the intent of the legislature and misconstrued the "best able and most competent" proviso of section 5(a), this Court is not now at liberty to give that proviso a different interpretation for it has been adopted by the legislature by operation of law. The Statutory Construction Act of 1972 provides:
Presumptions in ascertaining legislative intent
In ascertaining the intention of the General Assembly in the enactment of a statute, the following presumptions, among others, may be used:
(4) That when a court of last resort has construed the language used in a statute, the General Assembly in subsequent statutes on the same subject matter intends the same construction to be placed upon such language.
Since our majority decision in General Electric in 1976, the General Assembly has made amendments to section 5(a) of the Act no less than four times.*fn7a These amendments made several significant modifications to the Act*fn8a yet did not in any way modify the proviso "if the individual is the best able and most competent to perform the services
[ 506 Pa. Page 152]
required" as interpreted by this Court." It is obvious, therefore, that the legislature was satisfied that this Court's interpretation of section 5(a) in General Electric in 1976, an interpretation consistently followed and applied by the Commonwealth Court, was correct. Moreover, the construction placed upon section 5(a) by General Electric has, by operation of law, become a part of the Act which this Court is not now authorized to excise. See Commonwealth v. Philadelphia Electric Co., 472 Pa. 530, 539-40, 372 A.2d 815 (1977); Weber v. Lynch, 473 Pa. 599, 609 n. 6, 375 A.2d 1278 (1977); In re June 1979 Allegheny County Investigating Grand Jury, 490 Pa. 143, 149 n. 7, 415 A.2d 73 (1980) (Eagen, C.J. opinion announcing the judgment of the court); School District of Philadelphia v. Twer, 498 Pa. 429, 441-42, 447 A.2d 222 (1982) (Roberts, C.J., dissenting, joined by O'Brien and Larsen, JJ.).
Even assuming, merely for the sake of argument, that this Court is at liberty to reevaluate the wisdom and reasoning of General Electric, there is no reason to disturb that decision on the basis that it is contrary to principles of federal law; it is not. The superficial analysis of the federal title VII precedent set forth in the Opinion in Support of Reversal is, simply, incorrect. Mr. Justice Flaherty relying, on Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981) and United States Postal Service v. Aikens, 460 U.S. 711, 103 S.Ct. 1478, 75 L.Ed.2d 403 (1983), states:
Thus, the General Electric decision is clearly contrary to principles of fair employment law which have emerged relative to the federal analogue to Section 5(a) of the Pennsylvania Human Relations Act, viz. Title VII of the Civil Rights Act of 1964. Inasmuch as the General Electric rule was expressly promulgated for the primary purpose of conforming to principles of federal law, 469 Pa. at 303, 365 A.2d at 654-655, the rule's continued existence cannot be supported on that basis.
Slip opinion at 405.
The fundamental flaw in this analysis is that it fails to differentiate between, or even to recognize, the several
[ 506 Pa. Page 153]
established theories of employment discrimination that have evolved in the federal courts and that were considered and accommodated in General Electric. These recognized theories of employment discrimination in the Title VII sphere are generally classified as "disparate treatment", "disparate impact", and "present effects of past discrimination."*fn9a See Schlei and Grossman, Employment Discrimination Law, Parts I-IV (1976 ed. and 1979 supp.) (hereinafter Schlei and Grossman); Athas, Defendant's Burden of Proof in Title VII Class Action Disparate Treatment Suits, 31 Am.U.L.Rev. 755, 756 (1982); Terrell, Employment Discrimination: The Defendant's Burden, 29 Loy.L.Rev. 287, 288 (1983) (hereinafter Terrell); Smalls, The Burden of Proof in Title VII Cases, 25 How.L.J. 247 (1982) (hereinafter Smalls).
As noted Title VII authors, Schlei and Grossman, have explained:
When Title VII of the Civil Rights Act of 1964 . . . was first passed, it was viewed by the Congress which passed it solely as a prohibition against disparate treatment based on race, color, religion, sex or national origin.
One of the most significant developments in the laws prohibiting employment discrimination . . . has been the development, by the courts, of the remaining . . . categories of discrimination, particularly the second and third categories, perpetuating in the present the effects of past discrimination and disparate impact. Both of these categories assume a lack of intent to discriminate and that the practices complained of are neutral on their face.
[ 506 Pa. Page 154]
Concept of Employment Discrimination, 71 MichLRev 59 (1972). Either theory may, of course, be applied to a particular set of facts.
431 U.S. 335, n. 15, 97 S.Ct. 1854, n. 15. (Emphasis added.)
While the McDonnell Douglas/Burdine/Aikens order and allocation of proof are the established guidelines in disparate treatment cases, the United States Supreme Court has consistently cautioned that these are not rigid, inflexible rules. "The facts necessarily will vary in Title VII cases, and the specification above of the prima facie proof required [by the complainant] is not necessarily applicable in every respect to differing factual situations." McDonnell Douglas v. Green, supra 411 U.S. at 802, n. 14, 93 S.Ct. at 1824, n. 14. The McDonnell Douglas guidelines are "not unwavering absolutes." General Electric Corp. v. PHRC, supra 469 Pa. at 304-05 n. 11, 365 A.2d at 656 n. 11. See International Brotherhood of Teamsters v. United States, supra 431 U.S. at 358, 97 S.Ct. at 1866; Texas Department of Community Affairs v. Burdine, supra 450 U.S. at 253, n. 6, 101 S.Ct. at 1094; Furnco Construction Co. v. Waters, supra 438 U.S. at 575-76, 98 S.Ct. at 2948-49.
Accordingly, as discriminatory intent is not a critical factor in disparate impact and present effect cases, it is not surprising that a distinct set of guidelines regarding the order and allocation of proof has developed for the latter situations. Again, Schlei and Grossman instruct:
Griggs v. Duke Power Co. is the counterpart of McDonnell Douglas v. Green in setting forth the basic order and allocation of proof with regard to the disparate impact and present-effects-of-past-discrimination theories of discrimination. Griggs was a disparate impact case. The Supreme Court has not yet dealt with proof in a present-effects-of-past-discrimination case. However, the basic order and allocation of proof appears to be essentially the same in both kinds of cases.
[ 506 Pa. Page 156]
Schlei and Grossman, supra at 1159, 1159 n. 45. Justice Marshall further elaborated in Furnco Construction Co. v. Page 156} Waters, supra 438 U.S. at 581-85, 98 S.Ct. at 2952-53 (concurring and dissenting opinion, joined by Brennan, J.):
It is well established under Title VII that claims of employment discrimination because of race may arise in two different ways. Teamsters v. United States, 431 US 324, 335-336, n 15, 52 LEd2d 396, 97 SCt 1843 [1854-1855 n. 15] (1977). An individual may allege that he has been subjected to "disparate treatment" because of his race, or that he has been the victim of a facially neutral practice having a "disparate impact" on his racial group. The Court today concludes that the Court of Appeals was correct in treating this as a disparate-treatment case controlled by McDonnell Douglas Corp. v. Green, 411 US 792, 36 LEd2d 668, 93 SCt 1817 (1973).
Where the Title VII claim is that a facially neutral employment practice actually falls more harshly on one racial group, thus having a disparate impact on that group, our cases establish a different way of proving a claim. See, e.g., Teamsters, supra, at 336 n 15, 349, 52 LEd2d 396, 97 SCt 1843 [1854 n. 15]; Dothard v. Rawlinson, 433 US 321, 329, 53 LEd2d 786, 97 SCt 2720  (1977); General Electric Co. v. Gilbert, 429 US 125, 137, 50 LEd2d 343, 97 SCt 401  (1976); Albermarle Paper Co. v. Moody, 422 US 405, 422, 425, 45 LEd2d 280, 95 SCt 2362 [2373, 2375] (1975); Griggs v. Duke Power Co. 401 US 424, 430-432, 28 LEd2d 158, 91 SCt 849 [853-854] (1971). As set out by the Court in Griggs v. Duke Power Co., to establish a prima facie case on a disparate-impact claim, a plaintiff need not show that the employer had a discriminatory intent but need only demonstrate that a particular practice in actuality "operates to exclude Negroes." Id., at 431, 28 LEd2d 158, 91 SCt 849 [at 853].
Once the plaintiff has established the disparate impact of the practice, the burden shifts to the employer to show that the practice has "a manifest relationship to the employment in question." Id., at 432, 28 LEd2d 158, 91 SCt 849 [at 854]. The "touchstone is business
[ 506 Pa. Page 157]
necessity." [ Id. ] and the practice " must be shown to be necessary to safe and efficient job performance to survive a Title VII challenge." Dothard v. Rawlinson, supra, at 332 n 14, 53 LEd2d 786, 97 SCt 2720 [at 2728 n. 14]. Under this principle, a practice [having a discriminatory impact or effect] would be invalid if the practice in actuality impacts more harshly on a group protected under Title VII, unless the practice can be justified by business necessity. (Emphasis added).
A review of the cases and commentary discloses virtually unanimous recognition that the employer/defendant in a Title VII case involving disparate impact/effect faces a much more difficult burden than the employer in a disparate treatment case. See, e.g., Furnish, A Path Through the Maze: Disparate Impact and Disparate Treatment under Title VII of the Civil Rights Act of 1964 after Beazer and Burdine, 23 B.C.L.Rev. 419, 419-21 (1982) (hereinafter Furnish); Smalls, supra at 255-57, 267; Smith, supra; Athas, supra at 308; Terrell, supra at 312-14. The employer must, after the complainant has made out a prima facie case, somehow justify its policies or practices which cause or contribute to the disparate impact or discriminatory effect. To do this in the federal sphere, the employer may offer certain affirmative defenses such as "business necessity" or "bona fide occupational qualification." Essentially, the employer must demonstrate that any given requirement, practice or policy is job-related and bears a "manifest relationship to the employment in question." Griggs v. Duke Power Co., supra 401 U.S. at 430-31, 91 S.Ct. at 853; General Electric Corp. v. PHRC, supra 469 Pa. at 304, 365 A.2d at 655-56; Furnish, supra at 426-28; Smith, supra at 388; Smalls, supra at 252-54.
[ 506 Pa. Page 158]
In Pennsylvania, General Electric has determined that the "best able and most competent" language of section 5(a) of our Act is akin to the affirmative business necessity defense in the federal area. 469 Pa. at 303-04, 365 A.2d at 655-56. That is, under the disparate impact or present effects of past discrimination theories, the primary theories that were espoused by complainants in General Page 158} Electric, the employer that wishes to avail itself of the "best able and most competent" defense (or the "business necessity" or "bona fide occupational qualification" defenses) bears the burden of production and of persuasion. See Smalls, supra at 253-55; Smith, supra at 388; Furnish, supra at 425-29; Schlei and Grossman, supra at 1195-96. See also Albemarle Paper Co. v. Moody, 422 U.S. 405, 425-27, 95 S.Ct. 2362, 2375-76, 45 L.Ed.2d 280 (1975). It is not part of the employee's case to negate the existence of these affirmative defenses. While an employer is under no obligation, in a disparate treatment case, to offer proof of these affirmative defenses in order to meet its intermediate burden of proof under the McDonnell Douglas/Burdine/Aikens guidelines, the employer that chooses to avail itself of such a defense must, of course, sustain its burden of proof thereon.
The foregoing certainly does not purport to be an exhaustive survey or analysis of federal employment discrimination law which has many nuances in the area of order and allocation of proof that are not discussed herein. The discussion of the various theories and distinct guidelines is intended, rather, to demonstrate that General Electric is not contrary to principles of federal law as Mr. Justice Flaherty claims. Indeed, General Electric is a thorough and incisive integration of the principles of federal employment discrimination law with the development of employment discrimination law under our Act.
The instant case was litigated solely on the theory of disparate treatment of an individual. The Commonwealth Court opinion is a model for the appellate application of the McDonnell Douglas/Burdine/Aikens guidelines. Having properly applied the appropriate guidelines for the order and allocation of proof in a disparate treatment case, including the recognition that the complainant in such a case always retains the ultimate burden of persuasion of discriminatory intent, 462 A.2d 303-04, I would affirm that court's decision.
[ 506 Pa. Page 159]
OPINION IN SUPPORT OF AFFIRMANCE
On the particular facts of this case I believe the evidence is sufficient, albeit barely, to support the Pittsburgh Human Relations Commission's findings of discrimination in three of the five matters of which appellee complained. I therefore believe Commonwealth Court must be affirmed. However, because the precedential value of this case is limited to its facts, I would dismiss the appeal as improvidently granted.
Opinion IN SUPPORT OF REVERSAL
This is an appeal from an order of the Commonwealth Court which reversed*fn1 an order of the Court of Common Pleas of Allegheny County which reversed a decision of the Pittsburgh Commission on Human Relations (hereinafter Commission). The Commission determined that the appellee, Emily E. Davis Winn, a black female, had been discriminated against on the basis of race and sex by her employer, the appellant, Trans World Airlines, Inc., on three separate occasions when Winn had sought promotion. With regard to each of these instances in which the Commission found unlawful discrimination, the Court of Common Pleas reversed, holding that Winn had failed to prove that she was the best able and most competent person available for the positions. The Commonwealth Court reversed on the grounds that the Court of Common Pleas erred in placing upon Winn the burden of proving superior ability for the positions.
The primary issue in the instant appeal is the proper allocation of burden of proof in an employment discrimination case governed by Section 5(a) of the Pennsylvania
[ 506 Pa. Page 160]
Human Relations Act.*fn2 Section 5(a) of the Act, 43 P.S. § 955(a), provides in relevant part:
It shall be an unlawful discriminatory practice, unless based upon a bona fide occupational qualification . . .: (a) For any employer, because of the race, . . . sex, . . . of any individual to refuse to hire or employ, or to bar or to discharge from employment 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.
In a plurality decision by this Court, General Electric Corp. v. Pennsylvania Human Relations Commission, 469 Pa. 292, 365 A.2d 649 (1976) (Pomeroy, J., joined by Eagen and O'Brien, JJ.), we held it to be the employer's burden, under Section 5(a), to demonstrate that the complainant was not "best able and most competent to perform the services required." That decision was expressly rested on the belief that such an allocation of proof would be in accord with developments in federal fair employment laws, and upon the view that the employer should bear the burden because the employer has easier access to the facts which influenced employment decisions. Re-examination of the General Electric rationale, however, reveals revision of the burden of proof standards set forth in that decision to be warranted.
Although the independent status of our state Human Relations Act is not to be ignored, this Court has, in the interest of uniformity and predictability in enforcement of equal employment legislation, construed the Human Relations Act in light of principles of fair employment law which have emerged relative to the corresponding federal statute,
[ 506 Pa. Page 161]
Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. Chmill v. City of Pittsburgh, 488 Pa. 470, 491, 412 A.2d 860, 871 (1980). It is argued that the federal precedents relied upon in General Electric did not support the holding in that case, but it is at least clear that supervening federal decisions have condemned the approach followed in that case. The federal courts do not require employers to prove that successful job applicants were more qualified than complainants, and, indeed, the Supreme Court of the United States has held it to be reversible error, in Title VII cases, to impose this burden upon employers. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 258-260, 101 S.Ct. 1089, 1096-1097, 67 L.Ed.2d 207, 218-219 (1981).
Imposing such a burden upon employers, as is required under the General Electric rule, perhaps places the employer at risk when, given a choice among equally qualified candidates, or even a choice among those the employer merely fears may be regarded by the Commission as being at least arguably equally qualified, in the event the employer fails to select a minority applicant. Thus, the employer could be induced by the General Electric rule to favor minority applicants, rather than to provide, as was the intent of the Human Relations Act, truly equal opportunities for all applicants. This fear was clearly expressed in Burdine, 450 U.S. at 259, 101 S.Ct. at 1096-1097, 67 L.Ed.2d at 219,
Title VII, however, does not demand that an employer give preferential treatment to minorities or women . . . . It does not require the employer to restructure his employment practices to maximize the number of minorities and women hired . . . .
[Requiring the employer to prove that the person hired was more qualified than the complainant would require] the employer to hire the minority or female applicant whenever that person's objective qualifications were equal to those of a white male applicant. But Title VII does not obligate an employer to accord this preference.
[ 506 Pa. Page 162]
Rather, the employer has discretion to choose among equally qualified candidates, provided the decision is not based upon unlawful criteria. The fact that a court may think that the employer misjudged the qualifications of the applicants does not in itself expose him to Title VII liability, although this may be probative of whether the employer's reasons are pretexts for discrimination.
(citations omitted). Thus, the General Electric decision is clearly contrary to principles of fair employment law which have emerged relative to the federal analogue to Section 5(a) of the Pennsylvania Human Relations Act, viz. Title VII of the Civil Rights Act of 1964. Inasmuch as the General Electric rule was expressly promulgated for the primary purpose of conforming to principles of federal law, 469 Pa. at 303, 365 A.2d at 654-655, the rule's continued existence cannot be supported on that basis.
The second reason advanced in General Electric for the rule announced therein was a purportedly pragmatic one, that the employer has better access to the facts which influenced an employment decision, and, therefore, that the employer should be required to prove that the complainant was not the "best able and most competent" applicant, thus saving the complainant from incurring the difficulty, time, and expense of establishing one's own relative qualifications. Upon re-examination of this rationale, however, it is clear that placing this burden upon the accused employer, merely because there has been an allegation of wrongdoing, is truly repugnant to the spirit of traditional approaches requiring that one who accuses of wrongdoing must bear the burden of proving its existence. The mere fact that the employer is in possession of facts relating to employment decisions is not reason to discard the normal requirement that complainants prove their own cases, for access to data in the employer's possession may be sought through the usual processes of discovery, and contents of the Commission's investigatory files may be sought by complainants. Thus, inasmuch as the General Electric decision rests upon a faulty rationale, it should be overruled.
[ 506 Pa. Page 163]
Pervasive federal regulation of employment matters has resulted in the development of an extensive body of federal precedents in the realm of employment discrimination law, and these precedents have been utilized in this Commonwealth, although not binding, as persuasive authority, particularly in regard to proof requirements. See Caterpillar Tractor Co. v. Commonwealth Human Relations Commission, 78 Pa. Commw. 86, 90, 466 A.2d 1129, 1132 (1983) ("The method by which these types of cases are to be adjudicated is now familiar.") Decisions of the Supreme Court of the United States have rested the ultimate burden of persuasion in federal employment discrimination cases squarely upon the complainant, rather than upon the employer. U.S. Postal Service Board v. Aikens, 460 U.S. 711, 714, 103 S.Ct. 1478, 1482, 75 L.Ed.2d 403, 410 (1983); Burdine, 450 U.S. at 256, 101 S.Ct. at 1095, 67 L.Ed.2d at 217. In its recent decision in Aikens, the Supreme Court of the United States summarized employment discrimination proof requirements as follows:
By establishing a prima facie case, the plaintiff in a Title VII action creates a rebuttable "presumption that the employer unlawfully discriminated against" him. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 254, 101 S.Ct. 1089, 1094, 67 L.Ed.2d 207 (1981). See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). To rebut this presumption, "the defendant must clearly set forth, through the introduction of admissible evidence, the reasons for the plaintiff's rejection." Burdine, supra, 450 U.S., at 255, 101 S.Ct., at 1094. In other words, the defendant must "produce evidence that the plaintiff was rejected, or someone else was preferred, for a legitimate, nondiscriminatory reason." Id., at 254, 101 S.Ct., at 1094.
But when the defendant fails to persuade the district court to dismiss the action for lack of a prima facie case, and responds to the plaintiff's proof by offering evidence of the reason for the plaintiff's rejection, the fact finder must then decide whether the rejection was discriminatory
[ 506 Pa. Page 164]
within the meaning of Title VII. At this stage, the McDonnell-Burdine presumption "drops from the case," id., at 255, n. 10, 101 S.Ct. at 1095, n. 10, and " the factual inquiry proceeds to a new level of specificity." Id., at 255, 101 S.Ct., at 1095 . . . .
The "factual inquiry" in a Title VII case is "whether the defendant intentionally discriminated against the plaintiff." Burdine, supra, at 253, 101 S.Ct., at 1093 . . . . As we stated in Burdine: "The plaintiff retains the burden of persuasion. [H]e may succeed in this either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence." 450 U.S., at 256, 101 S.Ct., at 1095.
460 U.S. at 713-716, 103 S.Ct. at 1481-1482, 75 L.Ed.2d at 409-411. (footnote omitted).
The prima facie case referred to by the U.S. Supreme Court in Aikens has uniformly been regarded in the federal system, and, to the present, in this Commonwealth, as that set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 36 L.Ed.2d 668, 93 S.Ct. 1817 (1973). Burdine, 450 U.S. at 252-253, 101 S.Ct. at 1093, 67 L.Ed.2d at 215; General Electric, 469 Pa. at 304, 365 A.2d at 655-656. Under McDonnell-Douglas, a complainant makes out a prima facie case of discrimination, in the usual case, if he establishes that he is a member of a protected minority, that he applied for a job for which he was qualified, that his application was rejected, and that the employer continued thereafter to seek other applicants of equal qualification. 411 U.S. at 802, 93 S.Ct. at 1824, 36 L.Ed.2d at 677. The definition of a prima facie case, applicable to cases brought under Section 5(a) of the Pennsylvania Human Relations Act, should, in accordance with an overruling of the General Electric decision, be modified to include the additional showing by the complainant that he was the "best able and most competent" applicant. This corresponds to the requirement in Section 5(a) of our Act, not found in the
[ 506 Pa. Page 165]
analogous provision of Title VII, that the complainant have been "the best able and most competent to perform the services required," in order for unlawful discrimination to be found.
*fn1 The positions subsequently discussed were also located in TWA's Pittsburgh office.
*fn2 The Commission concluded that Winn had been discriminated against with respect to her applications for the position of Senior Sales Representative in March 1976 and April 1978, Team Coordinator in April 1977 and Field Training Instructor in February 1977. It was determined that the salary scale for the Senior Sales Representative position would be used exclusively in computing the award. The Commission ruled that Winn was not qualified for the Cargo Account Executive job and would not have been hired absent discrimination.
*fn3 Three members of the Court in General Electric, including this writer, would have gone further and held that an employer had an affirmative duty of eradicating a work "climate" which had the effect of "chilling" the rights of females to apply for jobs in a certain category. General Electric Corp. v. Pennsylvania Human Rights Commission, 469 Pa. 292, 317, 365 A.2d 649, 662 (1976) (Manderino, J., concurring, joined by Roberts and Nix, JJ.) Then Chief Justice Jones noted a dissent.
*fn4 Many years ago Lord Coke stressed the importance of decisional constancy. That wise counsel is ignored by the Opinion in Support of Reversal in seeking to overturn a decision reached in 1976 interpreting a statute which has not been changed in language pertinent to that decision. Moreover, where the court of last resort has given an interpretation to a statute and the legislature thereafter leaves it unchanged, it is presumed that the legislature accepts the interpretation. E.g., DiGirolamo v. Apanavage, 454 Pa. 557, 312 A.2d 382 (1973); Commonwealth v. Wanamaker, 450 Pa. 77, 296 A.2d 618 (1972); Pennsylvania Labor Relations Board v. Uniontown Hospital Ass'n., 432 Pa. 146, 247 A.2d 621 (1968); Commonwealth v. Willson Products, Inc., 412 Pa. 78, 194 A.2d 162 (1963); Rader v. Pennsylvania Turnpike Commission, 407 Pa. 609, 182 A.2d 199 (1962); Cali v. City of Philadelphia, 406 Pa. 290, 177 A.2d 824 (1962); In re Loeb's Estate, 400 Pa. 368, 162 A.2d 207 (1960).
6a See, e.g., Harrisburg School Dist. v. PHRC, 77 Pa. Commw. 594, 466 A.2d 760 (1983); Caterpillar Tractor Co. v. Commonwealth, PHRC, 78 Pa. Commw. 86, 466 A.2d 1129 (1983); Reed v. Miller Printing Equipment Div. of W. Gear Corp., 75 Pa. Commw. 360, 462 A.2d 292 (1983); National Railroad Passenger Corp. v. Commonwealth PHRC, 70 Pa. Commw. 62, 452 A.2d 301 (1982), allocatur denied.
*fn7a These amendments were: 1978, Nov. 26, P.L. 292, No. 309, § 1, effective in 60 days; 1980, Jan. 10, P.L. 1, No. 1, § 1, effective in 60 days; 1980, Dec. 9, P.L. 1122, No. 198, § 1, imd. effective; 1982, April 8, P.L. 284, No. 80, § 2, imd. effective.
*fn8a See summary of these amendments in Comments to 43 P.S. § 955.
*fn9a There is a fourth generally recognized theory of employment discrimination, namely, the failure of an employer to make reasonable accommodation to an employee's religious observances or practices. The genesis of this theory is §§ 701(j) and 703(a)(1) of title VII, 42 U.S.C. §§ 2000e(j) and 2000e-2(a)(1). This is a unique category of discrimination law which bears little resemblance to the theories discussed in text and, hence, will not be considered further in this opinion. See generally, Schlei and Grossman, supra at Part IV.
*fn1 Winn v. Trans World Airlines, Inc., 75 Pa. Commw. 368, 462 A.2d 301 (1983).
*fn5 The Commonwealth Court has consistently followed our allocation of the burden of proof in General Electric. Winn v. Transworld Airlines, Inc., 75 Pa. Commw. 366, 462 A.2d 301 (1983); Blackburn v. Pennsylvania Human Relations Commission, 62 Pa. Commw. 171, 435 A.2d 671 (1981); Berks County Prison v. Pennsylvania Human Relations Commission, 36 Pa. Commw., 433, 387 A.2d 1030 (1978); Luzerne County Community College v. Pennsylvania Human Relations Commission, 33 Pa. Commw. 121, 381 A.2d 201 (1977).
*fn2 The present case was brought under the Pittsburgh Human Relations Ordinance, promulgated by Pittsburgh City Council pursuant to authority granted by the Pennsylvania Human Relations Act at 43 P.S. 962.1. Decisions as to the burden of proof under Section 5(a) of the Pennsylvania Human Relations Act are regarded as controlling authority for the purposes of the Ordinance.