12 Pa. Commw. 20 | Pa. Commw. Ct. | 1974
Opinion by
This is an appeal from a final order of the Pennsylvania Human Relations Commission ordering appellant to tender an offer of full-time employment to a complainant and to pay the complainant the amount she would have earned from appellant from September 20, 1968, until October 1, 1970, at which time she began other employment, less any monies otherwise earned by complainant during the period. The action before the Commission had been instituted by complainant on June 30, 1970, by filing a complaint alleging appellant had violated Section 5, subsection (a) of the Act of October 27, 1955, P. L. 744, as amended, 43 P.S. §955(a), known as the Pennsylvania Human Relations Act, in that appellant on or about May 25, 1970, had refused to hire complainant because she was a Negro for a permanent full-time position for which she was qualified while hiring Avhite employees.
Summarized very briefly, the testimony showed the complainant had applied for a full-time position with appellant on October 3, 1967. The application form showed she had experience in retail selling and restaurant work. Following appellant’s usual practice, she was started at part-time work which she continued, intermittently, until the spring of 1970. Her work seems to have been satisfactory with the exception that she was not always available when she was needed. During this period, appellant hired three white females for full-time work in a restaurant it was opening and one white female to do retail sales work full time.
Appellant operates a retail store in Charleroi which employs about 25 persons. During the period here involved, one of these employees was a black female, other than complainant, and the others were white.
The Commission rests its case on the decision of the Supreme Court of the United States in McDonnell-Douglas Corporation v. Green, 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973). This was an action based on an alleged violation of Section 703(a) (1) of the Civil Rights Act of 1964, 42 U.S.C.A. 2000e-2(a) (1), which prohibits discriminatory employment practices. This Section provides: “It shall be an unlawful employment practice for an employer ... (1) to fail or refuse to hire or discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions or privileges of employment, because of such individual’s race, color, religion, sex, or national origin. ...”
McDonnell-Douglas v. Green, supra, is properly cited by the appellee as standing for the proposition that a prima facie case of racial discrimination is made by complainant under the Civil Rights Act of 1964 when it is shown:
(1) She belongs to a racial minority;
(2) She applied and was qualified for a position for which the employer was seeking applicants;
(3) She was rejected;
(4) After rejection, the employer continued to accept applications. Counsel for the Commission argued that here the complainant met the requirements of McDonnell-Douglas, and that appellant had not come forward with sufficient evidence to overcome the prima facie case. That might have very well been correct if the charge had been as it was in McDonnell-Douglas, but it was not. It was a charge under the Pennsylvania Human Relations Act which has the additional requirement that the complainant be “the best able and most competent to perform the services required.” This requirement was completely ignored in the presentation of complainant’s case and is not mentioned anywhere in the findings of fact or conclusions of law of the Commission.
Accordingly, we enter the following
Order
Now, January 31, 1974, the order of the Pennsylvania Human Relations Commission, dated June 22, 1973, is vacated and the complaint dismissed.