Fairfield Township Volunteer Fire Co. v. Commonwealth

OPINION OF THE COURT

FLAHERTY, Justice.

The issue raised by this case is whether a complainant under the Pennsylvania Human Relations Act, 43 P.S. § 955(a), has made out a prima facie case of unlawful discrimination because of failure to hire based on the employer’s failure to establish specific qualifications for the job applied for.

*443On April 1,1982 Sarah Henderson applied for the position of firefighter with the Fairfield Township Volunteer Fire Company No. 1 (“fire company”). At the time, the bylaws of the fire company did not permit female members, and the fire company, therefore, refused to act on Henderson’s application. Henderson then filed a complaint with the Pennsylvania Human Relations Commission (PHRC) alleging that the fire company’s refusal to consider her application was in violation of the Human Relations Act (HRA). Shortly thereafter, the fire company amended its bylaws to permit female members, but on June 28, 1982, the members of the fire company voted not to accept Henderson as a member of the fire company, although they did accept a male applicant. Henderson then amended her complaint to allege that the fire company’s rejection of her application was a violation of the HRA, which prohibits, inter alia, sex discrimination in hiring.1

PHRC conducted an investigation and upon finding probable cause to believe that the fire company acted illegally in failing to accept Henderson as a member, conducted a public hearing on December 15, 1988. Thereafter, on April 26, 1989, the PHRC adopted the recommendations of the hearing examiner and ordered certain remedial action, including instatement of Henderson as a member of the fire company.

The fire company appealed, and Commonwealth Court vacated the Commission’s order and remanded for further proceedings because the Commission considered improperly admitted evidence and because the remedy was overbroad. 133 Pa.Cmwlth. 45, 575 A.2d 152. Commonwealth Court specifically denied the fire company’s claim that Henderson *444had not made out a prima facie case based on her testimony that she could not perform some fire fighting tasks, because “[a]t the time Complainant [Henderson] applied for membership, there were no physical requirements established for the position.” (Emphasis in original.) Both the Commission and the fire company petitioned for allowance of appeal. We denied the Commission’s petition and granted allocatur as to the fire company in order to address the fire company’s claim that Henderson had not made out a prima facie case of illegal sex discrimination.

In Allegheny Housing Authority v. Human Relations Commission, 516 Pa. 124, 532 A.2d 315 (1987), this court reaffirmed for use in employment discrimination cases the analytical model which had been adopted by the United States Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Under that model, the plaintiff’s burden of establishing a prima facie case of unlawful discrimination could be met by showing:

(i) that [the plaintiff] belongs to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of [the plaintiff’s] qualifications.

516 Pa. at 129, 532 A.2d at 318.2 Once the plaintiff has made a prima facie case, the burden shifts to the defendant:

[T]he nature of the burden that “shifts” to the defendant when a prima facie case is established is simply to produce evidence of a “legitimate, non-discriminatory reason” for the discharge [or failure to hire]____ If such evidence is presented, the question for the Commission is *445whether, on all the evidence produced, the plaintiff has persuaded it by a preponderance of the evidence that the employer intentionally discriminated against her.

Id., 516 Pa. at 129-30, 532 A.2d at 318. (Emphasis in original.)

At the public hearing in 1988, Henderson testified that she was bom with a hole in her heart, that she had been hospitalized for 106 days when she was younger because an infection settled in the hole, and that she receives treatment from a chiropractor for arthritis in her back. In response to questions from the hearing examiner, she testified:

HEARING EXAMINER. Miss Henderson, how were you familiar with the type of work done, if you even were, by the firefighters at the company to which you applied? Were you familiar with the work they did?
MS. HENDERSON. Well, my husband, he was a fireman. When the fire whistle went off, I went with him many times. I seen what they did. I seen how they help people. I have nothing against the firefighters. HEARING EXAMINER. I’m just talking about the type of work they did.
MS. HENDERSON. Yes, I did.
HEARING EXAMINER. Did you feel that you were qualified to do that type of work?
MS. HENDERSON. There are some things I can’t do, and there are things I may be able to do.

(Emphasis added.)

In commenting on our analytical model in Allegheny Housing Authority, we stated:

The stated analysis is no more than an aid to evaluating the proof. If the plaintiff produces sufficient evidence that, if believed and otherwise unexplained, indicates that more likely than not discrimination has occurred, the defendant must be heard in response.

516 Pa. at 131, 532 A.2d at 318. Applying the analytical model to the facts of this case, plaintiff has testified that she may not be able to do the job. Plainly, therefore, she has not produced “sufficient evidence that, if believed and *446otherwise unexplained, indicates that more likely than not discrimination has occurred.” When a job applicant testifies that there are some job activities she cannot do, she has, without more, disqualified herself for that job.

Commonwealth Court expressed the view that Henderson’s health, as she herself described it at the public hearing, could be a legitimate basis for rejection of her application, but that such concerns were not applicable in Henderson’s case because “there were no physical requirements established for the position.” We disagree. There is no statutory requirement that an employer must have written job descriptions, and while the absence of particular written requirements may make it difficult to evaluate actions which an employer has taken in specific cases, it should not be troublesome in obvious cases. A firefighter needs to be physically fit; a secretary needs to have office skills; a taxi driver needs to have an appropriate license; a child care worker needs to be able to relate to children.

We are aware that from one point of view it is anomalous to hold that an employee has not made out a prima facie case of unlawful discrimination based on evidence of inability to perform which comes to light six years after the application and is not officially known at the time of application.3 In our view, however, it would be even more anomalous to hold that a prima facie case of discrimination were made out, thus requiring the employer to set up a defense as to why the person was not hired, where the evidence in the plaintiff’s case in chief is that the applicant cannot do the job. In addition, because the PHRC defines unlawful discriminatory employment practices as various acts which are directed towards individuals who are “best able and most competent to perform the services required,” 43 P.S. *447§ 955(a), plainly, a person who testifies that she is unable to perform some job activities and may be able to perform others is not the best able and most competent, and such a person cannot, as a matter of law, make out a prima facie case of unlawful discrimination.

In this case, not only does the evidence indicate that Henderson has certain physical limitations, but, more important, it indicates that she knew basically what the firefighter job required and testified that there were some things she cannot do with respect to this job. On this record, Henderson did not make out a prima facie case of discrimination.

Order of Commonwealth Court is reversed.

CAPPY, J., files a concurring opinion. ZAPPALA, J., files a dissenting opinion which is joined by LARSEN, J.

. Section 5(a) of the Human Relations Act, 43 P.S. § 955(a) provides: It shall be an unlawful discriminatory practice, unless based upon a bona fide occupational qualification ... [f]or any employer because of the ... 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.

. As we stated in Allegheny Housing Authority:

This standard is, to be sure, adaptable to accommodate differences in the nature of the discrimination alleged (e.g., sex rather than race) and in the action alleged to be improper (e.g., discharge rather than refusal to hire).

516 Pa. at 129. 532 A.2d at 318.

. Although the fire company’s screening committee, which was responsible for interviewing applicants and presenting them to the membership for acceptance or denial of application for membership, apparently did not question Henderson as to her health, R.R. 72a, at least one fire company member testified that he voted against admitting Henderson to membership because he heard rumors that she had back and heart ailments, R.R. 108a.