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ACTION INDUSTRIES v. COMMONWEALTH PENNSYLVANIA (12/05/86)

decided: December 5, 1986.

ACTION INDUSTRIES, INC., PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, HUMAN RELATIONS COMMISSION, RESPONDENT



Appeal from the Order of the Pennsylvania Human Relations Commission in the case of Timothy R. Vogt v. Action Industries, Inc., Docket No. E-23851.

COUNSEL

Jon Hogue, Titus, Marcus & Shapira, with him, Linda S. Wilson, for petitioner.

Marianne Sara Malloy, Assistant General Counsel, with her, Elisabeth S. Shuster, General Counsel, for respondent.

President Judge Crumlish, Jr., and Judges Craig, MacPhail, Doyle, Barry, Colins and Palladino. Opinion by Judge Doyle.

Author: Doyle

[ 102 Pa. Commw. Page 383]

This is an appeal by Action Industries, Inc. (Action) from an order of the Pennsylvania Human Relations Commission (Commission) which adopted the findings, opinion and conclusion of its hearing examiner, who determined that Action had violated Section 5 of the Pennsylvania Human Relations Act (Act)*fn1 by discriminating against a job applicant on the basis of a non-job-related handicap or disability.

The facts in this case are not in dispute. On May 18, 1982, Timothy Vogt applied for a position as a temporary warehouse worker with Action, an importer, manufacturer and distributor of household products, plastics and light bulbs. This position involves heavy manual labor including the regular lifting of loads of up to 65 pounds. Vogt was interviewed on July 12, 1982 and was given a conditional offer of employment provided that he would undergo a pre-employment health evaluation and obtain a recommendation of employment from the examining physician. The examination was performed by Dr. Daniel Welsh, M.D., a physiatrist. This individual was not an employee of Action, but worked for Harmarville Rehabilitation Center, with which Action had entered into an agreement to perform physical examinations for all applicants for warehouse positions. Action had initiated this policy after determining that a disproportionately high number of warehouse employees sustained work-related injuries.

Dr. Welsh's examination revealed that Vogt had rotary lateral scoliosis of the spine. The doctor therefore

[ 102 Pa. Commw. Page 384]

    concluded that Vogt should not do heavy lifting and advised Action that he could not recommend Vogt for the position. Accordingly, Action declined to offer the job to Vogt. It is undisputed that Dr. Welsh's findings and opinion constituted the sole reason why Action refused Vogt employment.

Vogt filed a complaint before the Commission which, subsequent to its investigation, found probable cause to credit his complaint.*fn2 After attempts to conciliate failed,*fn3 a public hearing was scheduled and the hearing officer determined that Vogt had established a prima facie case of discrimination by demonstrating:

1. That he was a member of a protected minority;

2. That he applied for a job for which he was ...


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