dissenting.
I must dissent because the majority misperceives the basis for the Commonwealth Court’s conclusion that Sarah Henderson had established a prima facie case of illegal sex discrimination. The majority states that it disagrees with the Commonwealth Court’s holding because, “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.” (Majority slip opinion at *449446.) It is obvious to me, however, that the Commonwealth Court was not holding that the absence of written requirements precludes an employer from defending against a discrimination claim on the basis of physical requirements, albeit unwritten.
What the Commonwealth Court held was that Fairfield Township Volunteer Fire Company could not legitimately raise such a defense because there were no physical requirements for the position — written or unwritten. The Commonwealth Court was correct in concluding that the Fire Company could not whitewash its rejection of Henderson’s application by imposing requirements which were nonexistent at the time she applied. As does the majority, I would expect that employers would have fire fighters who are physically fit, secretaries who have office skills, taxi drivers who have appropriate licenses, and child care workers who relate to children. But if an employer has not required such skills when the applicants have all been men, it is illegal discrimination to impose that requirement when the applicant is a woman. An employer may not create a separate classification of job requirements based upon the sex of the applicant.
We should not allow this insidious discrimination. The pretense that the applicant was rejected because she lacked the physical abilities to perform the job is particularly offensive under the facts of this case. Raymond D. Conrad was the President of the Fire Company and a member for thirty-one years. He was involved in the screening committee meeting when Henderson’s application was considered. When questioned whether he asked Henderson about her health, he responded affirmatively but could not recall if he was told anything. (R. 64-65a) The factor that the majority finds crucial had little significance to the Fire Company’s president.
More importantly, President Conrad testified as follows:
Q: Mr. Flickinger asked you if Mrs. Henderson’s health came up during her screening.
A: I don’t remember at the time.
*450Q: You thought maybe you had asked the question, but you couldn’t remember her answer.
A: No.
Q: The screening meeting did recommend her for membership?
A: Yes.
Q: She did fit all the qualifications?
A: Yes. We wouldn’t have recommended her if she didn’t.
(R. 72a, emphasis added). The physical condition of the applicant was not even a pretext given to her for the rejection; it was an excuse developed after the rejection.
The Fire Company refused to act on Henderson’s application because the bylaws did not permit female members. Legal counsel advised the Fire Company that the bylaws were discriminatory and would have to be amended. A special meeting was held on June 24, 1982, to vote on the proposed amendments. Of the thirty-three votes cast, ten voted not to pass the amendment. Members expressed their displeasure with the amendment permitting women to be members. (R. 61a, 80a).
During the thirty-one years that President Conrad had been a member of the Fire Company, only one male applicant had ever been rejected. (R. 73a). The Secretary of the Fire Company, Dean Caldwell, testified that he believed only one man had been rejected in its entire history. (R. 5la). Henderson was only the second applicant to have been rejected.
I agree with the Commonwealth Court that a prima facie case of discrimination was made out by Henderson. As the Commonwealth Court stated,
The Fire Company here contends that Complainant did not make out a prima facie case because she did not show that she was qualified for the position. In this regard it refers to the testimony that Complainant had been bom with a hole in her heart and when she was younger had been hospitalized for one hundred and six days because of *451an infection which had settled in the hole. Complainant had also testified that she had back problems and indicated that there were some things related to fighting fires which she could not do. We have no doubt that factors such as this could be a legitimate basis for rejecting an applicant as a fire fighter. They are not, however, legitimate in this case to demonstrate that Complainant was unqualified for the position for one good reason. At the time Complainant applied for membership, there were no physical requirements established for the position. We note that in January 1984 the by-laws were amended to add such a requirement. The Fire Company cannot, however, now go back and attempt to impose requirements on Complainant which were nonexistent at the time she applied. Accordingly, its assertion that she did not meet her prima facie burden must be rejected.
Fairfield Township Volunteer Fire Co. v. Pennsylvania Human Relations Commission, 133 Pa.Cmwlth. 45, 575 A.2d 152, 154-155 (1990) (emphasis supplied.)
LARSEN, J., joins in this dissenting opinion.