Appeal from the Order of the Pennsylvania Human Relations Commission, in case of Rollin R. Lewis and William R. Birch v. Carolina Freight Carriers, Docket Nos. E-19317 and E-19318.
William J. Flannery, with him, Francis M. Milone and Robert W. Smith, Of Counsel: Morgan, Lewis & Bockius, for petitioner.
G. Thompson Bell, Assistant General Counsel, with him, Elisabeth S. Shuster, General Counsel, for respondent.
President Judge Crumlish, Jr., Judges Rogers, Craig, MacPhail, Doyle, Colins and Palladino. Opinion by Judge Doyle. Judge Colins dissents.
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This is an appeal by Carolina Freight Carriers (Carolina) from an order of the Pennsylvania Human Relations Commission (Commission) which adopted the findings of fact, opinion, and conclusions of law recommended
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by a hearing panel which determined that Carolina had, by refusing to hire two road drivers, discriminated against them in violation of Section 5 of the Pennsylvania Human Relations Act*fn1 (Act).
The facts are substantially agreed upon. On August 6, 1980 William R. Birch and Rollin R. Lewis applied for employment with Carolina as road drivers assigned to Carolina's terminal in Carlisle, Pennsylvania. The road driver position entails driving a tractor trailer from terminal to terminal through multiple states. Road drivers must be both physically and mentally able to operate safely a motor vehicle despite unfavorable weather or traffic conditions. Drivers must also be capable of delivering and unloading freight.
Approximately five weeks after submitting their applications, both Birch and Lewis were sent to Ritzman Associates, an association of physicians, for spinal x-rays. This procedure constitutes part of Carolina's physical examination process. Although the Commission made no specific finding, it is apparently undisputed that Dr. Harhigh, the examining physician, was instructed to examine Birch and Lewis to determine whether they were medically qualified under federal Department of Transportation (FED DOT) regulations to be drivers. It is also undisputed that Carolina had no medical qualifications of its own which were independent of the federal qualifications.
Upon conducting the medical examinations Dr. Harhigh discovered that both men had a number of osteophytes or "bony spurs" on the vertabrae of the lower back which, according to the doctor's testimony, could, under continuous jarring of the spine, interfere with the nerves leaving the spinal area and cause impairment in the functioning of the legs. Accordingly, Dr. Harhigh
[ 99 Pa. Commw. Page 431]
determined that the applicants were medically unqualified pursuant to FED DOT Regulation 391.41, 49 C.F.R. § 391.41, which states in pertinent part:
Physical qualifications for drivers
(a) A person shall not drive a motor vehicle unless he is physically qualified to do so and, except as provided in § 391.67, has on his person the original, or a photographic copy, of a medical examiner's certificate ...