School District of Millcreek v. Commonwealth

Dissenting Opinion by

Judge Blatt :

I must respectfully dissent. Our scope of review in appeals from adjudications of the Pennsylvania Human Relations Commission (Commission) is governed by Section 44 of the Administrative Agency Law,1 71 P.S. §1710.44, and is limited to a determination of whether or not the necessary findings of fact are supported by substantial evidence and whether or not the order is in accordance with law. Leechburg Area School District v. Pennsylvania Human Relations Commission, 19 Pa. Commonwealth Ct. 614, 339 A.2d 850 (1975). We must accept the supported facts as found by the Commission, even though we might have viewed the evidence differently and might have *269made different findings of fact. Gibbs v. Civil Service Commission, 3 Pa. Commonwealth Ct. 230, 281 A.2d 170 (1971). The majority here, it seems to me, has failed to adhere to onr scope of review and, in reversing the Commission, has made its own factual determinations.

The key findings of the Commission were as follows:

13. The duties of all of the Head Coaches, both male and female, were the same. All duties were listed on page two of the Coaches’ Handbook. (Emphasis added.)
14. Coaches had many other duties in addition to the actual playing of competitive matches.

The majority has, in effect, reviewed the evidence and found that the head coaching duties involved were not similar. The Commission’s findings, however, seem to me to be clearly supported by the record (pages 26a, 59a, 82a and 83a of the printed record), which shows that for the 1972-1973 tennis season, the boys’1 team played 16 matches and the girls’ team played 22 matches and, for the 1973-1974 tennis season, the boys’ team played 14 matches and the girls’ team played 8 matches. The girls’ team also competed in the state championships for the 1973-1974 season and I presume, although it does not appear in the record, that the boys’ team competed in the state championships for both seasons. Mr. Ronald Manchester, Supervisor of Physical Education and Athletics, testified that head coaches had many duties and responsibilities in addition to actual match competition and that these duties were contained in the handbook.

The Commission, after having found that the tennis head-coaching jobs required the performance of the same duties, and that a different salary had been *270paid to the complainant, concluded that a violation of Section 5 of the Pennsylvania' Human Relations Act2 (Act), 43 P.S. §95,5, had occurred.3

It is clear that the purposes and legal requirements of Article I, Section 28 of the Pennsylvania Constitution,4 the Equal Pay Law5, and Section 5 of the Penn*271sylvania Human Relations Act all require that there be equal compensation for equal work without regard to sex. Because the Commission found that the complainant performed a job which was substantially equal to that of her male counterpart and which required the same effort, skill and responsibility for less compensation, I would affirm the Commission’s conclusion that the appellant had violated Section 5 of the Act and discriminated against the, complainant on the basis of her sex.

Act of June 4, 1945, P.L. 1388, as amended, 71 P.S. §1710.1 et seq.

Section 5 of the Act of October 27, 1955, P.D. 744, as amended, provides, in part, as follows:

It shall be an unlawful discriminatory practice, unless based upon a bona fide occupational qualification. . .
(a) For any employer because of the race, color, religious creed, ancestry, age, sew, national origin or non-job related handicap or disability 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.)

I must note that the salary schedules for coaching boys’ and girls’ tennis were equalized for the 1974-1975 season.

“Equality of rights under the law shall not be denied or abridged in the Commonwealth of Pennsylvania because of the sex of the individual.” Pa. Const. art. I, §28.

Section 3 of the Equal Pay Law, Act of December 17, 1959, P.L. 1913, as amended, 43 P.S. §336.3 provides, in part, as follows:

(a) No employer . . . shall discriminate . . . between employes on the basis of sew by paying wages to employes . . . at a rate less than the rate at which he pays wages to employes of the opposite sew . . . for equal work on jobs, the performance of which, requires equal skill, effort, and responsibility, and which are performed under similar working conditions, except where such payment is made pursuant to (1) a seniority system; (2) a merit system; (3) a system which measures earnings by quantity or quality of production; or (4) a differential based on any other factor other than sex. . . . (Emphasis added.)

Section 3 of the Equal Pay Law is substantially similar to Section 6(d) (1) of the Fair Labor Standards Act of 1938, 29 U.S.C. 206 (d)(1). The eases under the federal act provide the “equal work” means only that the jobs be substantially equal in that they require *271the same skill, effort and responsibility. Shultz v. American Can Co., 424 F.2d 356 (8th Cir. 1970) ; Shultz v. Wheaton Glass Co., 421 F.2d 259 (3rd Cir. 1970).