Dissenting Opinion ry
Judge Palladino:I dissent. I disagree with the majority’s holding that there was unlawful discrimination against Complainant.
A prima facie case of discrimination under section 5(a) of the Pennsylvania Human Relations Act (PHRA), Act of October 27, 1955. P.L. 744, as amended, 43 P.S. §955(a),1 is established by proving that the complainant *528is a member of a protected class, has suffered adverse employment action, and that others not in the class have been treated differently. Burns International Security Services, Inc. v. Pennsylvania Human Relations Commission, 119 Pa. Commonwealth Ct. 418, 547 A.2d 818 (1988). Thus, Complainant in this case must initially show that he is a member of a protected class, i .e. that he is a handicapped or disabled person within the meaning of the PHRA.
Pursuant to the PHRA, the Pennsylvania Human Relations Commission (HRC) has promulgated regulations which define handicapped or disabled person to include a person who “has a physical or mental impairment which substantially limits one or more major life activities” or “is regarded as having such an impairment.” 16 Pa. Code §44.4 (i)(A), (C). The HRC has defined the phrase “is regarded as having an impairment” as one who “has a physical or mental impairment that does not substantially limit major life activities but that is treated by an employer ... as constituting such a limitation. ...” 16 Pa. Code §44.4(ii)(D).
Accordingly, the first element which Complainant must establish is that he has a “physical or mental impairment” within the meaning of the HRC regulations, even if he attempts to come within the purview of the “is regarded as having” section.
The HRC has defined “physical or mental impairment” as follows:
[A] physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological; musculoskeletal; special sense organs; respiratory, including speech organs; cardiovascular; reproductive; digestive; genitourinary; hemic and lymphatic; skin, and endocrine or a mental or *529psychological disorder, such as mental illness, and specific learning disabilities.
16 Pa. Code §44.4(ii)(A).
Given this definition and the evidence presented in this case, I conclude that Complainant has failed to establish that his excess weight constitutes a “physical impairment.” Complainant testified that he did not have difficulty breathing, pulmonary problems, lung disease, high blood pressure, diabetes, or thyroid condition. Hearing of December 12, 1986, Notes of Testimony at 20-22. While Complainant may have been overweight, his own testimony clearly establishes that his weight had no effect on any of the body systems enumerated in 16 Pa. Code §44.4(ii)(A). Therefore, I would hold that Complainant does not have a physical impairment under the regulations and is not handicapped under the PHRA.
I believe that the HRC erred in determining that unlawful discrimination by the City against Complainant has been shown. Even assuming the correctness of this determination, I also would find that the HRC abused its discretion in failing to deduct from Complainant’s back pay award the amount which he received in unemployment compensation benefits.
As the majority notes, the HRC is given wide discretion in fashioning remedies where unlawful discrimination has been proven. Williamsburg Community School District v. Pennsylvania Human Relations Commission, 99 Pa. Commonwealth Ct. 206, 512 A.2d 1339 (1986). A back pay award rendered by the HRC may serve to discourage discrimination and to restore the injured party to his pre-injury status. Id. The majority in the instant case has concluded that the HRC’s refusal to allow the City an offset for the unemployment compensation benefits which Complainant received furthers both of these purposes. I disagree.
*530In this case, the HRC specifically found that the City suspended its height and weight requirements on October 24, 1980. Finding of Fact No. 9. By letter dated October 24,1980, Complainant was notified that he could resume his employment, which he did. The HRC’s final order was not issued until December 3, 1987, over seven (7) years after the City discontinued its use of the height and weight standards. Accordingly, given the facts of this case, I conclude that the HRC’s refusal to allow the City an offset for the unemployment compensation which Complainant received does not further the goal of discouraging future discrimination.2
As stated above, a back pay award is also intended to restore the injured party to his pre-injury status. In Williamsburg, this court considered the issue of whether the HRC committed an error of law or abused its discretion when it refused to deduct unemployment compensation benefits from a back pay award. The HRC determined that the complainant in Williamsburg did not receive a “windfall” because it [the HRC] did not award front pay which the complainant had requested and could have lawfully received. We affirmed the decision of the HRC, concluding that, on those facts, it was not required to offset the unemployment compensation benefits.
In contrast to Williamsburg, the Complainant in the instant case has not alleged that he is entitled to front pay. Further, the parties stipulated as to the amount of Complainant’s lost wages.3 I believe that the HRC’s *531failure to allow the City an offset does more than simply return Complainant to his pre-injury status. Thus, I conclude that the HRC’s refusal to deduct the unemployment compensation benefits from Complainant’s back pay award serves neither of the stated purposes of such an award.
I would reverse the HRC’s decision.
Section 5(a) provides that it shall be an unlawful discriminatory practice for an employer to discriminate against an individual with respect to terms and conditions of employment on the basis of a non-job related handicap or disability, unless based upon a bona fide occupational qualification, if that individual is the best and most competent to perform the services required. 43 P.S. §955(a). Section 4(p) of the PHRA defines “non-job related handicap” as “any handicap or disability which does not substantially interfere with the ability to perform essential functions of employment. ... 43 P.S. §954(p).
The majority states that the HRC award may serve to discourage other types of future discrimination, and not merely discrimination based upon height and weight. However, I believe that reference to other kinds of future discrimination which the City might engage in is unduly speculative and should not be used as justification for the HRC’s refusal to allow an offset.
Complainant’s lost wages totalled $2,241.12. The HRC awarded interest on this amount at the rate of six (6%) percent for the *531years 1980-1986. The parties also stipulated that Complainant received $1,043.00 in unemployment compensation benefits during the period of his suspension from his job.