Commonwealth, Department of Transportation v. Pennsylvania Human Relations Commission

PAPADAKOS, Justice,

concurring.

I join with the Majority’s Opinion that the Pennsylvania Human Relations Commission’s failure to review the entire record compiled by its hearing examiner before issuing its adjudication in this matter was a violation of the requirements of 43 P.S. § 959(g), and that this matter must, therefore, be remanded to the Commission to give it the opportunity to conduct a full review of the record by the requisite eleven commissioners. As a part of its review process, I would direct that the Commission be required to draft findings of fact regarding the requirements of the job for which complainant applied, whether complainant’s handicap disqualified him for consideration for the position sought and whether complainant sustained the burden of establishing that he was the best able and most qualified to perform the services required. 43 P.S. § 955(a).1

*410Under the current state of law, as set out in McDonnell-Douglas v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and followed in this Commonwealth, a complainant makes out a prima facie case of discrimination 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. Id., at 802, 93 S.Ct. at 1824, 36 L.Ed.2d at 677. Our statute, in addition to these elements, includes the requirement that the complainant must have been the best able and most competent to perform the services required. I believe that the complainant bears the burden of demonstrating, as part of his prima facie case showing discrimination, that he was the best able and most competent to perform the services required, and that a finding of fact must be addressed by the Commission to this issue.

While this conclusion is contrary to our Court’s plurality decision reached in General Electric Corporation v. Pennsylvania Human Relations Commission, 469 Pa. 292, 365 A.2d 649 (1976), which placed the burden upon the employer of demonstrating that complainant was not the best able and most competent to perform the services required, I feel that a fair reading of our statute and the parallel principles of fair employment law which have emerged relative to the corresponding federal statute, Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000(e), et seq., requires that General Electric be overruled and that we adopt the rule *411and rationale as expressed by Mr. Justice Flaherty in his Opinion in Support of Reversal in Winn v. Trans World Airlines, Inc., 506 Pa. 138, 484 A.2d 392 (1984), joined by McDermott and Zappala, JJ.

I find that the excellent opinion of Mr. Justice Flaherty succinctly and cogently analyzes the issue and reaches a conclusion in which I firmly join, as did Messrs. Justice McDermott and Zappala. I, therefore, adopt the opinion as follows:

“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, 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 *412intent 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. 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 *413saving the complainant from incurring the difficulty, time, and expense of establishing one’s own relative qualifications. Upon reexamination 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.
“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 *414Department 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 plaintiffs 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 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, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Burdine, 450 U.S. at *415252-253, 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 applications 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 analogous provision of Title VII, that the complainant (sic) have been ‘the best able and most competent to perform the services required,’ in order for unlawful discrimination to be found.”

Accordingly, I would remand the record to the Commission for further proceedings consistent with this Opinion.

FLAHERTY, J., joins this concurring opinion.

. We unanimously granted allocatur in this case so that we could reach the issue of the proper allocation of burden of proof in an employment discrimination case governed by Section 5(a) of the Pennsylvania Human Relations Act. 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. (Emphasis added.)

Although this Court has twice considered the issue, it has yet to express a majority view and, thus, establish the rule to be followed in Pennsylvania. This Court first considered the issue in 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. — Chief Justice Jones dissented, and Manderino, Roberts and Nix, JJ. concurred in the result, and reached an issue not decided by Mr. Justice Pomeroy). In this plurality decision, Mr. Justice Pomeroy placed upon the employer the burden of demonstrating that the complainant was not the best able and most competent to perform the services required.

Commonwealth Court accepted this plurality conclusion and applied it in Winn v. Trans World Airlines, Inc., 75 Pa.Commonwealth Ct. 366, 462 A.2d 301 (1983). Our Court granted allocatur and divided three-three, resulting in affirmance of Commonwealth Court. Mr. Justice Flaherty, joined by Messrs. Justice McDermott and Zappala, wrote the Opinion in Support of Reversal, while Mr. Chief Justice Nix *410filed an Opinion in Support of Affirmance in which Larsen, J. joined, Mr. Justice Larsen filed an Opinion in Support of Affirmance in which Nix, C.J. joined, and Mr. Justice Hutchinson filed an Opinion in Support of Affirmance. However, having granted allocatur in the instant case, the Court deemed it appropriate to grant reargument in the Winn case and avoid the possibility of inconsistent decisions with consequent injustice. This writer did not participate in the consideration or decision of the Winn case since he had been the trial judge at the Common Pleas level.

Thus, plurality decisions are guiding, or misguiding, the public on this important matter and it is appropriate that we finally reach a definite resolution with the participation of the full Court. The issue has been preserved and laid before us and is ripe for consideration.