Wells v. Civil Service Commission

225 A.2d 554, 423 Pa. 602, 1967 Pa. LEXIS 854, 1 Empl. Prac. Dec. (CCH) 9762, 9 Fair Empl. Prac. Cas. (BNA) 1233

Opinions

Opinion

Pee Curiam,

The Philadelphia Home Rule Charter empowers the Personnel Director “to use any investigation of education and experience, and any test of capacity, knowledge, manual skill, character or physical fitness which in his judgment serves this end.”

* In the exercise of this authority the personnel director of the City of Philadelphia prepared an examination for policewomen which differed somewhat from the one which applied to policemen. Specific in the distinction was the factor that policewomen seeking promotion to policewomen sergeancies were required to undergo an oral test, whereas the examination for policemen did not include an oral test.

Ruth S. Wells, a policewoman employed by the City of Philadelphia, seeking promotion to the position of policewoman sergeant, filed a complaint in equity against the Civil Service Commission and the personnel director of the City, praying for a decree which would eliminate the oral test from the examination for the position of policewoman sergeant.

The defendants filed preliminary objections averring that the complaint failed to state a cause of action in that no justiciable issue was raised. The Court of Common Pleas No. 10 of Philadelphia County sustained the preliminary objections, and dismissed the complaint. The plaintiff appealed.

The plaintiff contends that the oral test for female applicants and not for male applicants is an arbitrary and unfair discrimination and thus violates the equal protection clause of the 14th Amendment to the Constitution of the United States. The plaintiff admits in her brief that “there is, of course, no rule requiring equal treatment for men and women under all circumstances.” That is the answer to the problem raised in this case. As stated by Justice Frankfurter in Goesaert v. Cleary, 335 U.S. 464, “the Constitution does not require situations ‘which are different in fact or opinion to be treated in law as though they were the same.’ ”

While it would be banal superfluity to state that women are entitled to the same rights and prerogatives of citizenship as men, it cannot be said, in the interests of public welfare, that they may compel an employer to assign them to tasks for which, in the best, impartial judgment of the employer, they may not only not be properly trained, but tasks where they may be subjected to perils with which they are not fitted to cope. For instance, there are some phases of firefighting where a man, because of superior physical strength, hardened muscles and intensive training can unquestionably combat a conflagration more effectively than a woman. On the other hand, there are fields in which women can do a better job than men, as, for instance, the superintendency of a girls’ school.

The plaintiff argued in the court below that the position of male police sergeant and female police sergeant are substantially identical. The court replied to' this argument: “Many of the tasks performed by the police force are of such a nature, physiologically speaking, that they cannot and should not be assigned to women. Using firearms, patrolling the highways, maintaining roadblocks, conducting raids, ferreting out dangerous criminals, quelling gang warfare and riots are just a few examples.

“In addition, the job specifications of the police department list, inter alia, the following distinctions. Policewomen sergeants are required to have a knowledge of the functions of community and social welfare agencies, and of the social problems in urban centers, particularly those which involve the delinquency of women and children. Also, they must have the ability to gain the confidence of adults and children having social and behavioral problems. Policemen sergeants are required to have a particular knowledge of the law of arrest and evidence, and of the principles and techniques of crime and accident investigation, interrogation and first aid.

“It is obvious that the differences in qualifications for the two jobs are such that one test could not suffice — there would have to be a different test for men and for women. And if the Civil Service Commission can properly vary the substance of the two tests, by what rule should it be prohibited from varying the form? Our research has unearthed nothing requiring such proscription.”

In seeking promotion to the position of police sergeant, the men and women do not compete against each other. When a policeman sergeancy is vacant, the job will be filled from policemen; when a policewoman sergeancy is available, only policewomen qualify. Although policemen and policewomen wear the same kind of a badge, exercise the same governmental authority, their responsibilities and particular missions may be so dissimilar that to subject them both to precisely the same test might in itself be a demonstration of unfair treatment.

A practical reason also enters into the matter of selection for promotions. The vastly superior number of male police officers as against the number of female police officers in Philadelphia make oral examination of the men, in a given situation, impracticable. In this respect, the lower Court said: “At the most recent test date, there were 2,379 male and 25 female applicants.. It would have taken 5 to 7 weeks to give each man an oral examination, yet all the women were examined in one day.”

The court below properly disposed of the issues before it, including the argument that the personnel director abused his discretion.

Decree affirmed, costs to be divided between the parties.

§7-401 (e) — Annotation.