OFFICIAL OPINION No. 9

OFFICIAL OPINION No. 9 Israel Packel Attorney General Unemployment Compensation-Pregnancy-Human Relations Act 1. Sections 40l(d) (2), 402(b) (1) and 402(f) of ~he Unemployment Compensation Law of December 5, 1937, as amended, are 1mphedly repealed by the Human Relations Act of October 27, 1955, as amended, because they unlawfully dis- criminate against women on the basis of sex. 30 OPINIONS OF THE ATTORNEY GENERAL Harrisburg, Pa. February 7, 1974 Honorable Paul J. Smith Secretary of Labor & Industry Harrisburg, Pennsylvania Dear Secretary Smith: We have been asked by the Human Relations Commission to determine whether certain provisions of the Unemployment Com- pensation Law of December 5, 1937, P.L. 2897, as amended, 43 P.S. §751 et seq., are inconsistent with the sex discrimination provisions of the Human Relations Act of October 27, 1955. P.L. 744, as amended, 43 P.S. §951 et seq. and with the Equal Rights Amend- ment of the Pennsylvania Constitution, Article I, §28. Specifically, the following provisions have been question- ed: (1) Section 401(d) (2), 43 P.S. §801(d) (2), which provides that a pregnant woman is to be conclusively presumed un- available for work and ineligible for benefits for a period beginning thirty (30) days prior to the anticipated date of birth and ending thirty (30) days after the birth of the child. (2) Section 402(b) (1), 43 P.S. §802(b) (1), which provides that voluntary leaving of work without cause of a necessitous and compelling nature shall bar employee eligibility for compensation, and makes voluntary leaving of work because of pregnancy not a cause of necessitous and compelling nature. (3) Section 402(f), 43 P.S. §802(f), which provides that a pregnant woman laid off by her employer for reason of pregnancy is ineligible for benefits for a period beginning ninety (90) days prior to the anticipated birth and ending thirty (30) days after the birth of the child. It is our opinion, and you are advised, that all three of these provisions, as they currently stand, unlawfully discriminate against women on the basis of their sex. Such discriminatory Qrovi~ions are impliedly repealed by Section 12(a) of the Human Relat10ns Act, 43 P.S. §962(a). Remedial legislation which would specifically repeal these provisions (Senate Bill 1221 )* has passed the Senate and been *Editor's Note - Senate Bill 1221. Printer's Number 2525 was adopted by the General Assembly, as amended in the House. and was approved by the Governor. Act of December 5, 1974, P.L. , No. 261. OPINIONS OF' THE ATTORNEY GENERAL 31 referred to the House of Representatives Labor Relations Com- mittee. We strongly support this legislation, in view of our opinion that the present provisions are in conflict with the Human Relations Act and possibly unconstitutional. 1 Specific action by the Legislature would provide a definitive statement of non- discriminatory intent and would clarify the law by removing in- operable provisions from the statute books. DISCUSSION The stated purpose of the Pennsylvania Unemployment Com- pensation Law (UCL) is to provide financial assistance to persons who become unemployed through no fault of their own. UCL Sec- tion 3, 43 P.S. §752. The benefits are financed through taxes or "contributions" paid in varying amounts by employers who are subject to the UCL Sections 301-302, 43 P.S. §§781-782. When an unemployed worker is awarded compensation, his benefits are charged against his former employer's reserve account. UCL Sec- tion 302, 43 P.S. § 782. The contribution rate of each employer is determined in part by an "experience factor" which is based upon the average annual benefits claimed against his reserve account. UCL Section 301.1, 43 P.S. § 781.1. Thus, it is in the employer's best interest to insure a low annual benefit drain - and hence lower unemployment taxes-by maintaining full employment capacity and refraining from firing workers without good cause. In order to receive benefits under the Unemployment Compen- sation Law, an unemployed person who has been employed long enough and earned enough wages to qualify for compensation must be "able to work and available for suitable work." UCL Sec- tion 401(d), 43 P.S. §801(d). A person who is unable to work because of illness or physical or mental disability is ineligible for benefits under this section. "The Unemployment Compensation Law is not and never was intended to be health insurance legisla- tion. Its benefits go only to persons able to work and available for work. It does not provide benefits for an ill employe during the period of his illness." Antinopoulas Unemployment Compensation Case, 181 Pa. Superior Ct. 515, 518 (1956). Sections 401(d) (2) and 402(f) presume that a woman who is in an advanced state of pregnancy, or one who has just been delivered of a child, is in a physical condition which renders her unable to 1. Since we find these provisions impliedly repealed by the Human Relations Act, we need not reach the question of constitutionality under. Article I .. §28 of the. Penn- sylvania Constitution. It is apparent, however, that senous quest10ns are raise~ by the Equal Rights Amendment and by the Fourteenth Amendment of the Umted States Constitution. See Cleveland Board of Education u. LaFleur, 414 U.S. 632. (1974) This possible unconstitutionality buttresses our position that UCL Sec- tions 40l(d) (2), 402(b) (1) and 402(f) are repealed ~Y the Human Relations Act, since it is an established rule of statutory construct10n that the Legislature does not intend an unconstitutional result. See Statutory Construction Act of 1972, 1 Pa. S. §1922(3). 32 OPINIONS OF THE ATTORNEY GENERAL work This presumption that all pregnant and immediately post part~m womE'.n are . equally disabled is refuted by. st~n.dard medical practice which treats each pregnancy as an md1v1dual matter. See Cleveland Board of Education v. LaFleur, 414 U.S. 632 (1974). No such p~esumpti<?~ is made regarding any other physical disability or medical cond1t10n. In general, an employee who leaves work voluntarily due to ill health may be eligible for benefits if his disability allows him to do light work and he actively seeks such work. His termination of employment is considered for "good cause" if the job is not within his physical capacity. Filchock Unemployment Compensation Case, 164 Pa. Superior Ct. 43 (1949). Similarly, an employee who takes an extended leave of absence from work due to ill health may pre- vent himself from becoming disqualified for benefits by taking such precautions to guard his job as a reasonably prudent person would take. Vernon Unemployment Compensation Case, 164 Pa. Superior Ct. 131, 135 (1949). It is his duty to give his employer timely notice of his illness and to seek a leave of absence or otherwise manifest his intention not to abandon the labor force. Flannick Unemployment Compensation Case, 168 Pa. Superior Ct. 606, 610 (1951). A pregnant woman who voluntarily leaves work is, however, totally barred by Section 402(b) (1) from receiving benefits, regardless of whether her leaving is a manifestation of in- tent to abandon the labor force. Thus, pregnancy is once again treated as qualitatively different from any other physical disabili- ty. The Human Relations Act forbids discrimination in employment on the basis of sex. 2 The Pennsylvania Supreme Court, in Cerra v. East Stroudsburg Area School District, 450 Pa. 207 (1973), held that a school district's mandatory pregnancy leave grovisions con- stituted sex discrimination in violation of the Act. The Court said ( 450 Pa. at 213): Mrs. Cerra's contract was terminated absolutely, solely because of pregnancy. She was not allowed to resume her duties after the pregnancy ended, even though she was physically and mentally competent. There was no evidence that the quality of her services as a teacher was or would be affected as a result of her pregnancy. Male 2. In relevant part. the Act provides: Section 3. "The opportunity for an individual to obtain employment for which he is qualifi ed ... without discrimination because of. .. sex ... [is] hereby recognized as and declared to be [a] civil right. ... " * * • Section 5. "It shaH be_ an unlawful practice, unless based upon a bona fide oc- cup_at1onal quahf1cat1on ... (a) For any employer because of the ... sex ... of any in- d1v1du_al to _refuse to hire or employ, or to ~ar or to discharge from employment such ind1v1dual, or to. other_w1se discriminate against such individual with respect to cor;,ipensat1on, hi re, tenure, terms. conditions or privileges of employment.... 43 P.S. § 955(a). OPINIONS OF THE ATTORNEY GENERAL teachers, who might well be temporarily disabled from a multitude of illnesses, have not and will not be so harshly treat~d. In short, Mrs. Cerra and other pregnant women are singled out and placed in a class to their disadvantage. They are dischars-ed from their employment on the basis of a physical condition peculiar to their sex. This is sex dis- crimination pure and simple. 33 See also the Human Relations Commission's Guidelines on Dis- crimination Because of Sex, 1 Pa. Bulletin 707 (Dec. 19, 1970), which forbid employers from penalizing or discriminating against female employees because they require time away from work because of childbirth. Since it is illegal under the Human Relations Act for an employer to treat pregnant employees any differently than employees otherwise temporarily disabled, the question becomes whether it is permissible for the Commonwealth, through its un- employment compensation program, to so differentiate. We find that it is not. Section 12(a) of the Human Relations Act, 43 P.S. §962(a), provides: The provisions of this act shall be construed liberally for the accomplishment of the purposes thereof, and any law inconsistent with any provisions hereof shall not apply. Section 402(f) of the Unemployment Compensation Law is clear- ly inconsistent with Section 5(a), 43 P.S. §955(a) of the Human Relations Act, in that the employer conduct necessary to bring the exclusion of benefits into play is illegal.3 UCL Section 401(d) (2), with its conclusive presumption that women eight (8) months preg- nant to one month after parturition are unavailable for work, is contrary to the guarantee of sexual equality expressed in Section 3 of the Human Relations Act, in that it treats pregnant women as a class and not as individuals. UCL Section 402(b) (1) is invalid on the same grounds as Section 401(d) (2). In view of the fact that Section 12(a) of the Human Relations Act of 1955 was enacted after Sections 401(d) (2), 401(b) (1) and 402(f), all three of these UCL provisions are impliedly J"epealed by Section 12(a). To allow them to stand would be to encourage the very con- duct the Human Relations Act condemns. Pregnant women fired because of their condition and/or unable to find work because of employer discrimination would be cut off from benefits intended 3 While we find that Section 402(f) is invalid on the basis of clear inconsistency · with the Human Relations Act. it also appears that Section 402(f) is now an anomaly and that as a matter of law no situation.could ~r! se in which its applica- tion would be appropriate. In e i ~he r case, as we discuss injra ... Burea.u of Efl'.ploy- ment Security officials are to disregard Section 402(f) m their administration of the Unemployment Compensation Law. 34 OPINIONS OF THE ATTORNEY GENERAL for all members of the work force unemployed through no fll:ult of their own. Discriminatory employer~ could, abs~nt. a compl~mt by such a woman to the Human Relations Comm1s?ion, con~mue ~o fire pregnant employees at will, assured that no ~ncrease m their unemployment taxes would result from such actions. Accordingly, the Bureau of Employment Security i? required henceforth to administer the unemployment compensation system as if Sections 401(d) (2) and 402(f) did not exist. In other words, a pregnant woman should be treated exactly the same as any other member of the work force. When she is physically able to work, she should be considered "able and available;" and when she is not, she should be treated the same as any other ill or disabled person. Section 402(b) (1) should be administered as if the phrase, "Provided, that a voluntary leaving work because of pregancy, whether or not the employer is able to provide other work, shall be deemed not a cause of necessitous and compelling nature" were deleted. A pregnant woman who has voluntarily terminated her employ- ment because her doctor has informed her that her condition has made it necessary to seek less strenuous work, shall be considered to have left work for "good cause" if she has requested less strenuous work from her employer and he is unable or unwilling to provide it. Filchock Unemployment Compensation Case, supra. She will be entitled to benefits if she registers for, and actively seeks, such work as is within her capability, and such work is available in the area in which she lives. Filchock, supra, 164 Pa. Superior Ct. at 46. A woman who has voluntarily left work during pregnancy and seeks to return after her child is born may, like any other employee who takes an extended sickness or disability leave, be reasonably required by the Bureau to manifest her intention not to abandon the labor force by seeking a leave of absence from her employer or otherwise indicating a desire to return to her job. Antinopoulas Unemployment Compensation Case, supra, 181 Pa. Superior Ct. at 522. A pregnant woman who is (unlawfully) fired because of pregnancy, or becomes unemployed for statutorily valid reasons unrelated to her pregnancy who is available for work and who manifests an intent to remain in the labor force after the birth of her child, is eligible for benefits as long as she is physically able to work as certified by her doctor. When such a woman who has been unable to work for some period of time is again certified as able to work by her doctor, she may aga.in begin to receive benefits. (If, h.o:wever, she h~s not wo~ked 9un!1&" the base year preceding her filmg of her claim, she will be mehg1ble for benefits under Section 401(a) ). In order to facilitate proper application of the guidelines outlin- ed above by Bureau of ~mplo.}:'ment Security field offices and referee~. we re~om~end lf!lmed1ate promulgation of appropriate regulations which will advise Bureau personnel in detail as to the OPINIONS OF THE ATTORNEY GENERAL 35 effect of this opinion on specific fact situations. Very truly yours, Jennifer A. Stiller Deputy Attorney General Israel Packel Attorney General