Republic of the Philippines

Supreme Court
Baguio City

Factual Background

EN BANC
ANG LADLAD LGBT PARTY
represented herein by its Chair,
DANTON REMOTO,

G.R. No. 190582

This is a Petition for Certiorari under Rule 65 of the Rules of Court, with an application for a writ of
preliminary mandatory injunction, filed by Ang Ladlad LGBT Party (Ang Ladlad) against the Resolutions of the
Commission on Elections (COMELEC) dated November 11, 2009[2] (the First Assailed Resolution) and December

Petitioner,
- versus -

16, 2009[3] (the Second Assailed Resolution) in SPP No. 09-228 (PL) (collectively, the Assailed Resolutions). The

COMMISSION ON ELECTIONS,
Promulgated:
Respondent.
April 8, 2010
x--------------------------------------------------------x
DECISION

case has its roots in the COMELECs refusal to accredit Ang Ladlad as a party-list organization under Republic Act
(RA) No. 7941, otherwise known as the Party-List System Act.[4]
Ang Ladlad is an organization composed of men and women who identify themselves as lesbians, gays,
bisexuals, or trans-gendered individuals (LGBTs). Incorporated in 2003, Ang Ladlad first applied for registration with

DEL CASTILLO, J.:

the COMELEC in 2006. The application for accreditation was denied on the ground that the organization had no

... [F]reedom to differ is not limited to things that do not matter much. That would be a mere
shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of
the existing order.
Justice Robert A. Jackson
West Virginia State Board of Education v. Barnette[1]

substantial membership base. On August 17, 2009, Ang Ladlad again filed a Petition[5] for registration with the
COMELEC.
Before the COMELEC, petitioner argued that the LGBT community is a marginalized and underrepresented sector that is particularly disadvantaged because of their sexual orientation and gender identity; that

One unavoidable consequence of everyone having the freedom to choose is that others may make different choices
choices we would not make for ourselves, choices we may disapprove of, even choices that may shock or offend or
anger us. However, choices are not to be legally prohibited merely because they are different, and the right to disagree
and debate about important questions of public policy is a core value protected by our Bill of Rights. Indeed, our
democracy is built on genuine recognition of, and respect for, diversity and difference in opinion.
Since ancient times, society has grappled with deep disagreements about the definitions and demands of
morality. In many cases, where moral convictions are concerned, harmony among those theoretically opposed is an
insurmountable goal. Yet herein lies the paradox philosophical justifications about what is moral are indispensable and
yet at the same time powerless to create agreement. This Court recognizes, however, that practical solutions are
preferable to ideological stalemates; accommodation is better than intransigence; reason more worthy than rhetoric.
This will allow persons of diverse viewpoints to live together, if not harmoniously, then, at least, civilly.

LGBTs are victims of exclusion, discrimination, and violence; that because of negative societal attitudes, LGBTs are
constrained to hide their sexual orientation; and that Ang Ladlad complied with the 8-point guidelines enunciated by
this Court in Ang Bagong Bayani-OFW Labor Party v. Commission on Elections.[6] Ang Ladlad laid out its national
membership base consisting of individual members and organizational supporters, and outlined its platform of
governance.[7]
On November 11, 2009, after admitting the petitioners evidence, the COMELEC (Second Division)
dismissed the Petition on moral grounds, stating that:
x x x This Petition is dismissible on moral grounds. Petitioner defines the Filipino
Lesbian, Gay, Bisexual and Transgender (LGBT) Community, thus:
x x x a marginalized and under-represented sector that is particularly
disadvantaged because of their sexual orientation and gender identity.
and proceeded to define sexual orientation as that which:

x x x refers to a persons capacity for profound emotional, affectional and

sexual attraction to, and intimate and sexual relations with, individuals of a
different gender, of the same gender, or more than one gender.
This definition of the LGBT sector makes it crystal clear that petitioner tolerates immorality which
offends religious beliefs. In Romans 1:26, 27, Paul wrote:
For this cause God gave them up into vile affections, for even their women
did change the natural use into that which is against nature: And likewise also
the men, leaving the natural use of the woman, burned in their lust one toward
another; men with men working that which is unseemly, and receiving in
themselves that recompense of their error which was meet.
In the Koran, the hereunder verses are pertinent:
For ye practice your lusts on men in preference to women ye are indeed a
people transgressing beyond bounds. (7.81) And we rained down on them a
shower (of brimstone): Then see what was the end of those who indulged in
sin and crime! (7:84) He said: O my Lord! Help Thou me against people who
do mischief (29:30).
As correctly pointed out by the Law Department in its Comment dated October 2, 2008:
The ANG LADLAD apparently advocates sexual immorality as indicated in
the Petitions par. 6F: Consensual partnerships or relationships by gays and
lesbians who are already of age. It is further indicated in par. 24 of the Petition
which waves for the record: In 2007, Men Having Sex with Men or MSMs in
the Philippines were estimated as 670,000 (Genesis 19 is the history
of Sodom and Gomorrah).
Laws are deemed incorporated in every contract, permit, license, relationship,
or accreditation. Hence, pertinent provisions of the Civil Code and the
Revised Penal Code are deemed part of the requirement to be complied with
for accreditation.
ANG LADLAD collides with Article 695 of the Civil Code which defines
nuisance as Any act, omission, establishment, business, condition of property,
or anything else which x x x (3) shocks, defies; or disregards decency or
morality x x x
It also collides with Article 1306 of the Civil Code: The contracting parties
may establish such stipulations, clauses, terms and conditions as they may
deem convenient, provided they are not contrary to law, morals, good
customs, public order or public policy. Art 1409 of the Civil Code provides
that Contracts whose cause, object or purpose is contrary to law, morals, good

customs, public order or public policy are inexistent and void from the
beginning.
Finally to safeguard the morality of the Filipino community, the Revised Penal Code, as amended,
penalizes Immoral doctrines, obscene publications and exhibitions and indecent shows as follows:
Art. 201. Immoral doctrines, obscene publications and exhibitions, and
indecent shows. The penalty of prision mayor or a fine ranging from six
thousand to twelve thousand pesos, or both such imprisonment and fine, shall
be imposed upon:
1. Those who shall publicly expound or proclaim doctrines openly contrary to
public morals;
2. (a) The authors of obscene literature, published with their knowledge in
any form; the editors publishing such literature; and the owners/operators of
the establishment selling the same;
(b) Those who, in theaters, fairs, cinematographs or any other place, exhibit
indecent or immoral plays, scenes, acts or shows, it being understood that the
obscene literature or indecent or immoral plays, scenes, acts or shows,
whether live or in film, which are prescribed by virtue hereof, shall include
those which: (1) glorify criminals or condone crimes; (2) serve no other
purpose but to satisfy the market for violence, lust or pornography; (3) offend
any race or religion; (4) tend to abet traffic in and use of prohibited drugs; and
(5) are contrary to law, public order, morals, good customs, established
policies, lawful orders, decrees and edicts.
3. Those who shall sell, give away or exhibit films, prints, engravings,
sculpture or literature which are offensive to morals.
Petitioner should likewise be denied accreditation not only for advocating immoral doctrines but
likewise for not being truthful when it said that it or any of its nominees/party-list representatives
have not violated or failed to comply with laws, rules, or regulations relating to the elections.
Furthermore, should this Commission grant the petition, we will be exposing our youth to an environment
that does not conform to the teachings of our faith. Lehman Strauss, a famous bible teacher and
writer in the U.S.A. said in one article that older practicing homosexuals are a threat to the
youth. As an agency of the government, ours too is the States avowed duty under Section 13,
Article II of the Constitution to protect our youth from moral and spiritual degradation.[8]

When Ang Ladlad sought reconsideration,[9] three commissioners voted to overturn the First Assailed
Resolution (Commissioners Gregorio Y. Larrazabal, Rene V. Sarmiento, and Armando Velasco), while three
commissioners voted to deny Ang Ladlads Motion for Reconsideration (Commissioners Nicodemo T. Ferrer,

Lucenito N. Tagle, and Elias R. Yusoph). The COMELEC Chairman, breaking the tie and speaking for the majority
in his Separate Opinion, upheld the First Assailed Resolution, stating that:
I.

The Spirit of Republic Act No. 7941

Ladlad is applying for accreditation as a sectoral party in the party-list system. Even assuming
that it has properly proven its under-representation and marginalization, it cannot be said
that Ladlads expressed sexual orientations per se would benefit the nation as a whole.
Section 2 of the party-list law unequivocally states that the purpose of the party-list system of
electing congressional representatives is to enable Filipino citizens belonging to marginalized and
under-represented sectors, organizations and parties, and who lack well-defined political
constituencies but who could contribute to the formulation and enactment of appropriate
legislation that will benefit the nation as a whole, to become members of the House of
Representatives.
If entry into the party-list system would depend only on the ability of an organization to represent
its constituencies, then all representative organizations would have found themselves into the
party-list race. But that is not the intention of the framers of the law. The party-list system is not a
tool to advocate tolerance and acceptance of misunderstood persons or groups of persons.
Rather, the party-list system is a tool for the realization of aspirations of marginalized
individuals whose interests are also the nations only that their interests have not been brought
to the attention of the nation because of their under representation. Until the time comes
when Ladlad is able to justify that having mixed sexual orientations and transgender
identities is beneficial to the nation, its application for accreditation under the party-list
system will remain just that.
II.

No substantial differentiation

x x x There is no question about not imposing on Ladlad Christian or Muslim religious practices.
Neither is there any attempt to any particular religious groups moral rules on Ladlad. Rather,
what are being adopted as moral parameters and precepts are generally accepted public morals.
They are possibly religious-based, but as a society, the Philippines cannot ignore its more than
500 years of Muslim and Christian upbringing, such that some moral precepts espoused by
said religions have sipped [sic] into society and these are not publicly accepted moral
norms.
V.

Legal Provisions

But above morality and social norms, they have become part of the law of the land. Article 201 of
the Revised Penal Code imposes the penalty of prision mayor upon Those who shall publicly
expound or proclaim doctrines openly contrary to public morals. It penalizes immoral doctrines,
obscene publications and exhibition and indecent shows. Ang Ladlad apparently falls under these
legal provisions. This is clear from its Petitions paragraph 6F: Consensual partnerships or
relationships by gays and lesbians who are already of age It is further indicated in par. 24 of the
Petition which waves for the record: In 2007, Men Having Sex with Men or MSMs in
the Philippines were estimated as 670,000. Moreoever, Article 694 of the Civil Code defines
nuisance as any act, omission x x x or anything else x x x which shocks, defies or disregards
decency or morality x x x. These are all unlawful.[10]

On January 4, 2010, Ang Ladlad filed this Petition, praying that the Court annul the Assailed Resolutions
and direct the COMELEC to grant Ang Ladlads application for accreditation.Ang Ladlad also sought the issuance ex
parte of a preliminary mandatory injunction against the COMELEC, which had previously announced that it would
begin printing the final ballots for the May 2010 elections by January 25, 2010.

In the United States, whose equal protection doctrine pervades Philippine jurisprudence, courts
do not recognize lesbians, gays, homosexuals, and bisexuals (LGBT) as a special class of
individuals. x x xSignificantly, it has also been held that homosexuality is not a constitutionally
protected fundamental right, and that nothing in the U.S. Constitution discloses a comparable
intent to protect or promote the social or legal equality of homosexual relations, as in the case of
race or religion or belief.

COMELEC not later than 12:00 noon of January 11, 2010.[11] Instead of filing a Comment, however, the OSG filed a

xxxx

to fully ventilate its position, we required it to file its own comment.[14] The COMELEC, through its Law Department,

Thus, even if societys understanding, tolerance, and acceptance of LGBTs is elevated, there can
be no denying that Ladlad constituencies are still males and females, and they will remain
either male or female protected by the same Bill of Rights that applies to all citizens alike.

On January 6, 2010, we ordered the Office of the Solicitor General (OSG) to file its Comment on behalf of
Motion for Extension, requesting that it be given until January 16, 2010 to Comment.[12] Somewhat surprisingly, the
OSG later filed a Comment in support of petitioners application.[13] Thus, in order to give COMELEC the opportunity
filed its Comment on February 2, 2010.[15]
In the meantime, due to the urgency of the petition, we issued a temporary restraining order on January 12,

xxxx

2010, effective immediately and continuing until further orders from this Court, directing the COMELEC to cease

IV. Public Morals

and desist from implementing the Assailed Resolutions.[16]

Our Ruling
Also, on January 13, 2010, the Commission on Human Rights (CHR) filed a Motion to Intervene or to
Appear as Amicus Curiae, attaching thereto its Comment-in-Intervention.[17]The CHR opined that the denial of Ang We grant the petition.
Ladlads petition on moral grounds violated the standards and principles of the Constitution, the Universal Declaration
Compliance with the Requirements of the Constitution
of Human Rights (UDHR), and the International Covenant on Civil and Political Rights (ICCPR). On January 19, and Republic Act No. 7941
2010, we granted the CHRs motion to intervene.
On January 26, 2010, Epifanio D. Salonga, Jr. filed his Motion to Intervene [18] which motion was granted
on February 2, 2010.[19]
The Parties Arguments
Ang Ladlad argued that the denial of accreditation, insofar as it justified the exclusion by using religious
dogma, violated the constitutional guarantees against the establishment of religion. Petitioner also claimed that the
Assailed Resolutions contravened its constitutional rights to privacy, freedom of speech and assembly, and equal
protection of laws, as well as constituted violations of the Philippines international obligations against discrimination
based on sexual orientation.
The OSG concurred with Ang Ladlads petition and argued that the COMELEC erred in denying petitioners
application for registration since there was no basis for COMELECs allegations of immorality. It also opined that
LGBTs have their own special interests and concerns which should have been recognized by the COMELEC as a
separate classification. However, insofar as the purported violations of petitioners freedom of speech, expression, and
assembly were concerned, the OSG maintained that there had been no restrictions on these rights.
In its Comment, the COMELEC reiterated that petitioner does not have a concrete and genuine national
political agenda to benefit the nation and that the petition was validly dismissed on moral grounds. It also argued for
the first time that the LGBT sector is not among the sectors enumerated by the Constitution and RA 7941, and that
petitioner made untruthful statements in its petition when it alleged its national existence contrary to actual verification
reports by COMELECs field personnel.

The COMELEC denied Ang Ladlads application for registration on the ground that the LGBT sector is
neither enumerated in the Constitution and RA 7941, nor is it associated with or related to any of the sectors in the
enumeration.
Respondent mistakenly opines that our ruling in Ang Bagong Bayani stands for the proposition that only
those sectors specifically enumerated in the law or related to said sectors (labor, peasant, fisherfolk, urban poor,
indigenous cultural communities, elderly, handicapped, women, youth, veterans, overseas workers, and professionals)
may be registered under the party-list system. As we explicitly ruled in Ang Bagong Bayani-OFW Labor Party v.
Commission on Elections,[20] the enumeration of marginalized and under-represented sectors is not exclusive. The
crucial element is not whether a sector is specifically enumerated, but whether a particular organization complies with
the requirements of the Constitution and RA 7941.
Respondent also argues that Ang Ladlad made untruthful statements in its petition when it alleged that it
had nationwide existence through its members and affiliate organizations. The COMELEC claims that upon
verification by its field personnel, it was shown that save for a few isolated places in the country, petitioner does not
exist in almost all provinces in the country.[21]
This argument that petitioner made untruthful statements in its petition when it alleged its national existence
is a new one; previously, the COMELEC claimed that petitioner was not being truthful when it said that it or any of its
nominees/party-list representatives have not violated or failed to comply with laws, rules, or regulations relating to the
elections. Nowhere was this ground for denial of petitioners accreditation mentioned or even alluded to in the
Assailed Resolutions. This, in itself, is quite curious, considering that the reports of petitioners alleged non-existence
were already available to the COMELEC prior to the issuance of the First Assailed Resolution. At best, this is
irregular procedure; at worst, a belated afterthought, a change in respondents theory, and a serious violation of
petitioners right to procedural due process.

Zamboanga Gay Association Zamboanga City[23]

Nonetheless, we find that there has been no misrepresentation. A cursory perusal of Ang Ladlads initial
Since the COMELEC only searched for the names ANG LADLAD LGBT or LADLAD LGBT, it is no

petition shows that it never claimed to exist in each province of the Philippines. Rather, petitioner alleged that the

LGBT community in the Philippines was estimated to constitute at least 670,000 persons; that it had 16,100 affiliates surprise that they found that petitioner had no presence in any of these regions. In fact, if COMELECs findings are to
and members around the country, and 4,044 members in its electronic discussion group. [22] Ang Ladlad also be believed, petitioner does not even exist in Quezon City, which is registered as Ang Ladlads principal place of
represented itself to be a national LGBT umbrella organization with affiliates around the Philippines composed of the business.
following LGBT networks:
Against this backdrop, we find that Ang Ladlad has sufficiently demonstrated its compliance with the legal
Abra Gay Association
Aklan Butterfly Brigade (ABB) Aklan
Albay Gay Association
Arts Center of Cabanatuan City Nueva Ecija
Boys Legion Metro Manila
Cagayan de Oro People Like Us (CDO PLUS)
Cant Live in the Closet, Inc. (CLIC) Metro Manila
Cebu Pride Cebu City
Circle of Friends
Dipolog Gay Association Zamboanga del Norte
Gay, Bisexual, & Transgender Youth Association (GABAY)
Gay and Lesbian Activists Network for Gender Equality (GALANG)
Metro Manila
Gay Mens Support Group (GMSG) Metro Manila
Gay United for Peace and Solidarity (GUPS) Lanao del Norte
Iloilo City Gay Association Iloilo City
Kabulig Writers Group Camarines Sur
Lesbian Advocates Philippines, Inc. (LEAP)
LUMINA Baguio City
Marikina Gay Association Metro Manila
Metropolitan Community Church (MCC) Metro Manila
Naga City Gay Association Naga City
ONE BACARDI
Order of St. Aelred (OSAe) Metro Manila
PUP LAKAN
RADAR PRIDEWEAR
Rainbow Rights Project (R-Rights), Inc. Metro Manila
San Jose del Monte Gay Association Bulacan
Sining Kayumanggi Royal Family Rizal
Society of Transexual Women of the Philippines (STRAP) Metro Manila
Soul Jive Antipolo, Rizal
The Link Davao City
Tayabas Gay Association Quezon
Womens Bisexual Network Metro Manila

requirements for accreditation. Indeed, aside from COMELECs moral objection and the belated allegation of nonexistence, nowhere in the records has the respondent ever found/ruled that Ang Ladlad is not qualified to register as a
party-list organization under any of the requisites under RA 7941 or the guidelines in Ang Bagong Bayani. The
difference, COMELEC claims, lies in Ang Ladlads morality, or lack thereof.
Religion as the Basis for Refusal to Accept Ang Ladlads
Petition for Registration

Our Constitution provides in Article III, Section 5 that [n]o law shall be made respecting an establishment of
religion, or prohibiting the free exercise thereof. At bottom, what our non-establishment clause calls for is government
neutrality in religious matters.[24] Clearly, governmental reliance on religious justification is inconsistent with this
policy of neutrality.[25] We thus find that it was grave violation of the non-establishment clause for the COMELEC to
utilize the Bible and the Koran to justify the exclusion of Ang Ladlad.
Rather than relying on religious belief, the legitimacy of the Assailed Resolutions should depend, instead,
on whether the COMELEC is able to advance some justification for its rulings beyond mere conformity to religious
doctrine. Otherwise stated, government must act for secular purposes and in ways that have primarily secular
effects. As we held in Estrada v. Escritor:[26]
x x x The morality referred to in the law is public and necessarily secular, not religious as the
dissent of Mr. Justice Carpio holds. "Religious teachings as expressed in public debate may
influence the civil public order but public moral disputes may be resolved only on grounds
articulable in secular terms." Otherwise, if government relies upon religious beliefs in formulating
public policies and morals, the resulting policies and morals would require conformity to what
some might regard as religious programs or agenda. The non-believers would therefore be

compelled to conform to a standard of conduct buttressed by a religious belief, i.e., to a

"compelled religion," anathema to religious freedom. Likewise, if government based its actions
upon religious beliefs, it would tacitly approve or endorse that belief and thereby also tacitly
disapprove contrary religious or non-religious views that would not support the policy. As a result,
government will not provide full religious freedom for all its citizens, or even make it appear that
those whose beliefs are disapproved are second-class citizens.
In other words, government action, including its proscription of immorality as expressed in
criminal law like concubinage, must have a secular purpose. That is, the government proscribes
this conduct because it is "detrimental (or dangerous) to those conditions upon which depend the
existence and progress of human society" and not because the conduct is proscribed by the beliefs
of one religion or the other. Although admittedly, moral judgments based on religion might have a
compelling influence on those engaged in public deliberations over what actions would be
considered a moral disapprobation punishable by law. After all, they might also be adherents of a
religion and thus have religious opinions and moral codes with a compelling influence on them;
the human mind endeavors to regulate the temporal and spiritual institutions of society in a
uniform manner, harmonizing earth with heaven. Succinctly put, a law could be religious or
Kantian or Aquinian or utilitarian in its deepest roots, but it must have an articulable and
discernible secular purpose and justification to pass scrutiny of the religion clauses. x x x
Recognizing the religious nature of the Filipinos and the elevating influence of religion in society,
however, the Philippine constitution's religion clauses prescribe not a strict but a benevolent
neutrality. Benevolent neutrality recognizes that government must pursue its secular goals and
interests but at the same time strive to uphold religious liberty to the greatest extent possible within
flexible constitutional limits. Thus, although the morality contemplated by laws is secular,
benevolent neutrality could allow for accommodation of morality based on religion, provided it
does not offend compelling state interests.[27]
Public Morals as a Ground to Deny Ang Ladlads
Petition for Registration

religious beliefs, convictions about the preservation of marriage, family, and procreation, even dislike or distrust of
homosexuals themselves and their perceived lifestyle. Nonetheless, we recall that the Philippines has not seen fit to
criminalize homosexual conduct. Evidently, therefore, these generally accepted public morals have not been
convincingly transplanted into the realm of law.[29]
The Assailed Resolutions have not identified any specific overt immoral act performed by Ang Ladlad. Even the
OSG agrees that there should have been a finding by the COMELEC that the groups members have committed or are
committing immoral acts.[30] The OSG argues:
x x x A person may be sexually attracted to a person of the same gender, of a different gender, or
more than one gender, but mere attraction does not translate to immoral acts. There is a great
divide between thought and action. Reduction ad absurdum. If immoral thoughts could be
penalized, COMELEC would have its hands full of disqualification cases against both the
straights and the gays. Certainly this is not the intendment of the law.[31]

Respondent has failed to explain what societal ills are sought to be prevented, or why special protection is
required for the youth. Neither has the COMELEC condescended to justify its position that petitioners admission into
the party-list system would be so harmful as to irreparably damage the moral fabric of society. We, of course, do not
suggest that the state is wholly without authority to regulate matters concerning morality, sexuality, and sexual
relations, and we recognize that the government will and should continue to restrict behavior considered detrimental
to society. Nonetheless, we cannot countenance advocates who, undoubtedly with the loftiest of intentions, situate

Respondent suggests that although the moral condemnation of homosexuality and homosexual conduct
may be religion-based, it has long been transplanted into generally accepted public morals. The COMELEC argues:

morality on one end of an argument or another, without bothering to go through the rigors of legal reasoning and
explanation. In this, the notion of morality is robbed of all value. Clearly then, the bare invocation of morality will not
remove an issue from our scrutiny.

Petitioners accreditation was denied not necessarily because their group consists of LGBTs but
because of the danger it poses to the people especially the youth. Once it is recognized by the
government, a sector which believes that there is nothing wrong in having sexual relations with
individuals of the same gender is a bad example. It will bring down the standard of morals we
cherish in our civilized society. Any society without a set of moral precepts is in danger of losing
its own existence.[28]

We also find the COMELECs reference to purported violations of our penal and civil laws flimsy, at best;
disingenuous, at worst. Article 694 of the Civil Code defines a nuisance as any act, omission, establishment, condition
of property, or anything else which shocks, defies, or disregards decency or morality, the remedies for which are a
prosecution under the Revised Penal Code or any local ordinance, a civil action, or abatement without judicial

We are not blind to the fact that, through the years, homosexual conduct, and perhaps homosexuals
themselves, have borne the brunt of societal disapproval. It is not difficult to imagine the reasons behind this censure

proceedings.[32] A violation of Article 201 of the Revised Penal Code, on the other hand, requires proof beyond
reasonable doubt to support a criminal conviction. It hardly needs to be emphasized that mere allegation of violation

of laws is not proof, and a mere blanket invocation of public morals cannot replace the institution of civil or criminal COMELECs differentiation, and its unsubstantiated claim that Ang Ladlad cannot contribute to the formulation of
proceedings and a judicial determination of liability or culpability.

legislation that would benefit the nation, furthers no legitimate state interest other than disapproval of or dislike for a

As such, we hold that moral disapproval, without more, is not a sufficient governmental interest to justify disfavored group.
exclusion of homosexuals from participation in the party-list system. The denial of Ang Ladlads registration on
purely moral grounds amounts more to a statement of dislike and disapproval of homosexuals, rather than a tool to

From the standpoint of the political process, the lesbian, gay, bisexual, and transgender have the same

further any substantial public interest.Respondents blanket justifications give rise to the inevitable conclusion that the interest in participating in the party-list system on the same basis as other political parties similarly situated. State
COMELEC targets homosexuals themselves as a class, not because of any particular morally reprehensible act.It is intrusion in this case is equally burdensome. Hence, laws of general application should apply with equal force to
this selective targeting that implicates our equal protection clause.

LGBTs, and they deserve to participate in the party-list system on the same basis as other marginalized and underrepresented sectors.

Equal Protection
It bears stressing that our finding that COMELECs act of differentiating LGBTs from heterosexuals insofar
Despite the absolutism of Article III, Section 1 of our Constitution, which provides nor shall any person be as the party-list system is concerned does not imply that any other law distinguishing between heterosexuals and
denied equal protection of the laws, courts have never interpreted the provision as an absolute prohibition on homosexuals under different circumstances would similarly fail. We disagree with the OSGs position that
classification. Equality, said Aristotle, consists in the same treatment of similar persons. [33] The equal protection clause homosexuals are a class in themselves for the purposes of the equal protection clause.[38] We are not prepared to single
guarantees that no person or class of persons shall be deprived of the same protection of laws which is enjoyed by out homosexuals as a separate class meriting special or differentiated treatment. We have not received sufficient
other persons or other classes in the same place and in like circumstances.[34]

evidence to this effect, and it is simply unnecessary to make such a ruling today. Petitioner itself has merely demanded
that it be recognized under the same basis as all other groups similarly situated, and that the COMELEC made an

Recent jurisprudence has affirmed that if a law neither burdens a fundamental right nor targets a suspect class, we will unwarranted and impermissible classification not justified by the circumstances of the case.
uphold the classification as long as it bears a rational relationship to some legitimate government end.[35] In Central
Bank Employees Association, Inc. v. Banko Sentral ng Pilipinas,[36] we declared that [i]n our jurisdiction, the standard

Freedom of Expression and Association

of analysis of equal protection challenges x x x have followed the rational basis test, coupled with a deferential attitude
to legislative classifications and a reluctance to invalidate a law unless there is a showing of a clear and unequivocal
breach of the Constitution.[37]

Under our system of laws, every group has the right to promote its agenda and attempt to persuade society
of the validity of its position through normal democratic means. [39] It is in the public square that deeply held
convictions and differing opinions should be distilled and deliberated upon. As we held in Estrada v. Escritor:[40]

The COMELEC posits that the majority of the Philippine population considers homosexual conduct as
immoral and unacceptable, and this constitutes sufficient reason to disqualify the petitioner. Unfortunately for the
respondent, the Philippine electorate has expressed no such belief. No law exists to criminalize homosexual behavior
or expressions or parties about homosexual behavior. Indeed, even if we were to assume that public opinion is as the
COMELEC describes it, the asserted state interest here that is, moral disapproval of an unpopular minority is not a
legitimate state interest that is sufficient to satisfy rational basis review under the equal protection clause. The

In a democracy, this common agreement on political and moral ideas is distilled in the public
square. Where citizens are free, every opinion, every prejudice, every aspiration, and every moral
discernment has access to the public square where people deliberate the order of their life together.
Citizens are the bearers of opinion, including opinion shaped by, or espousing religious belief, and
these citizens have equal access to the public square. In this representative democracy, the state is
prohibited from determining which convictions and moral judgments may be proposed for public
deliberation. Through a constitutionally designed process, the people deliberate and decide.
Majority rule is a necessary principle in this democratic governance. Thus, when public

deliberation on moral judgments is finally crystallized into law, the laws will largely reflect the
beliefs and preferences of the majority, i.e., the mainstream or median groups. Nevertheless, in the
very act of adopting and accepting a constitution and the limits it specifies including protection of
religious freedom "not only for a minority, however small not only for a majority, however large
but for each of us" the majority imposes upon itself a self-denying ordinance. It promises not to do
what it otherwise could do: to ride roughshod over the dissenting minorities.

With respect to freedom of association for the advancement of ideas and beliefs, in Europe, with its vibrant
human rights tradition, the European Court of Human Rights (ECHR) has repeatedly stated that a political party may
campaign for a change in the law or the constitutional structures of a state if it uses legal and democratic means and
the changes it proposes are consistent with democratic principles. The ECHR has emphasized that political ideas that
challenge the existing order and whose realization is advocated by peaceful means must be afforded a proper

Freedom of expression constitutes one of the essential foundations of a democratic society, and this freedom opportunity of expression through the exercise of the right of association, even if such ideas may seem shocking or
[44]
applies not only to those that are favorably received but also to those that offend, shock, or disturb. Any restriction unacceptable to the authorities or the majority of the population. A political group should not be hindered solely

imposed in this sphere must be proportionate to the legitimate aim pursued. Absent any compelling state interest, it is because it seeks to publicly debate controversial political issues in order to find solutions capable of satisfying
[45]
not for the COMELEC or this Court to impose its views on the populace. Otherwise stated, the COMELEC is everyone concerned. Only if a political party incites violence or puts forward policies that are incompatible with
[46]
certainly not free to interfere with speech for no better reason than promoting an approved message or discouraging a democracy does it fall outside the protection of the freedom of association guarantee.

disfavored one.
We do not doubt that a number of our citizens may believe that homosexual conduct is distasteful, offensive,
This position gains even more force if one considers that homosexual conduct is not illegal in this country. It or even defiant. They are entitled to hold and express that view. On the other hand, LGBTs and their supporters, in all
follows that both expressions concerning ones homosexuality and the activity of forming a political association that likelihood, believe with equal fervor that relationships between individuals of the same sex are morally equivalent to
supports LGBT individuals are protected as well.

heterosexual relationships. They, too, are entitled to hold and express that view. However, as far as this Court is

Other jurisdictions have gone so far as to categorically rule that even overwhelming public perception that concerned, our democracy precludes using the religious or moral views of one part of the community to exclude from
homosexual conduct violates public morality does not justify criminalizing same-sex conduct. [41] European and consideration the values of other members of the community.
United Nations judicial decisions have ruled in favor of gay rights claimants on both privacy and equality grounds,
citing general privacy and equal protection provisions in foreign and international texts.[42] To the extent that there is Of course, none of this suggests the impending arrival of a golden age for gay rights litigants. It well may be that this
much to learn from other jurisdictions that have reflected on the issues we face here, such jurisprudence is certainly Decision will only serve to highlight the discrepancy between the rigid constitutional analysis of this Court and the
illuminating. These foreign authorities, while not formally binding on Philippine courts, may nevertheless have more complex moral sentiments of Filipinos. We do not suggest that public opinion, even at its most liberal, reflect a
persuasive influence on the Courts analysis.

clear-cut strong consensus favorable to gay rights claims and we neither attempt nor expect to affect individual
perceptions of homosexuality through this Decision.

In the area of freedom of expression, for instance, United States courts have ruled that existing free speech
doctrines protect gay and lesbian rights to expressive conduct. In order to justify the prohibition of a particular The OSG argues that since there has been neither prior restraint nor subsequent punishment imposed on Ang Ladlad,
expression of opinion, public institutions must show that their actions were caused by something more than a mere and its members have not been deprived of their right to voluntarily associate, then there has been no restriction on
desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint.[43]

their freedom of expression or association. The OSG argues that:

There was no utterance restricted, no publication censored, or any assembly denied. [COMELEC]
simply exercised its authority to review and verify the qualifications of petitioner as a sectoral

party applying to participate in the party-list system. This lawful exercise of duty cannot be said to
be a transgression of Section 4, Article III of the Constitution.

The principle of non-discrimination is laid out in Article 26 of the ICCPR, as follows:

xxxx

Article 26

A denial of the petition for registration x x x does not deprive the members of the petitioner to
freely take part in the conduct of elections. Their right to vote will not be hampered by said denial.
In fact, the right to vote is a constitutionally-guaranteed right which cannot be limited.

All persons are equal before the law and are entitled without any discrimination to the equal
protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all
persons equal and effective protection against discrimination on any ground such as race, colour,
sex, language, religion, political or other opinion, national or social origin, property, birth or other
status.

As to its right to be elected in a genuine periodic election, petitioner contends that the denial of
Ang Ladlads petition has the clear and immediate effect of limiting, if not outrightly nullifying the
capacity of its members to fully and equally participate in public life through engagement in the
party list elections.
This argument is puerile. The holding of a public office is not a right but a privilege
subject to limitations imposed by law. x x x[47]
The OSG fails to recall that petitioner has, in fact, established its qualifications to participate in the party-list
system, and as advanced by the OSG itself the moral objection offered by the COMELEC was not a limitation
imposed by law. To the extent, therefore, that the petitioner has been precluded, because of COMELECs action, from
publicly expressing its views as a political party and participating on an equal basis in the political process with other
equally-qualified party-list candidates, we find that there has, indeed, been a transgression of petitioners fundamental
rights.

In this context, the principle of non-discrimination requires that laws of general application relating to
elections be applied equally to all persons, regardless of sexual orientation. Although sexual orientation is not
specifically enumerated as a status or ratio for discrimination in Article 26 of the ICCPR, the ICCPR Human Rights
Committee has opined that the reference to sex in Article 26 should be construed to include sexual orientation.
[48]

Additionally, a variety of United Nations bodies have declared discrimination on the basis of sexual orientation to

be prohibited under various international agreements.[49]

The UDHR provides:
Article 21.

Non-Discrimination and International Law

(1) Everyone has the right to take part in the government of his country, directly or
through freely chosen representatives.

In an age that has seen international law evolve geometrically in scope and promise, international human Likewise, the ICCPR states:
rights law, in particular, has grown dynamically in its attempt to bring about a more just and humane world order. For
individuals and groups struggling with inadequate structural and governmental support, international human rights

Article 25
Every citizen shall have the right and the opportunity, without any of the distinctions
mentioned in article 2 and without unreasonable restrictions:

norms are particularly significant, and should be effectively enforced in domestic legal systems so that such norms
may become actual, rather than ideal, standards of conduct.
Our Decision today is fully in accord with our international obligations to protect and promote human
rights. In particular, we explicitly recognize the principle of non-discrimination as it relates to the right to electoral
participation, enunciated in the UDHR and the ICCPR.

(a) To take part in the conduct of public affairs, directly or through freely chosen
representatives;
(b) To vote and to be elected at genuine periodic elections which shall be by universal
and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will
of the electors;
(c) To have access, on general terms of equality, to public service in his country.

As stated by the CHR in its Comment-in-Intervention, the scope of the right to electoral participation is elaborated by

We also hasten to add that not everything that society or a certain segment of society wants or demands is

the Human Rights Committee in its General Comment No. 25 (Participation in Public Affairs and the Right to Vote) automatically a human right. This is not an arbitrary human intervention that may be added to or subtracted from at
as follows:

will. It is unfortunate that much of what passes for human rights today is a much broader context of needs that
identifies many social desires as rights in order to further claims that international law obliges states to sanction these

1. Article 25 of the Covenant recognizes and protects the right of every citizen to take
part in the conduct of public affairs, the right to vote and to be elected and the right to have access
to public service. Whatever form of constitution or government is in force, the Covenant requires
States to adopt such legislative and other measures as may be necessary to ensure that citizens
have an effective opportunity to enjoy the rights it protects. Article 25 lies at the core of
democratic government based on the consent of the people and in conformity with the principles
of the Covenant.

innovations. This has the effect of diluting real human rights, and is a result of the notion that if wants are couched in
rights language, then they are no longer controversial.
Using even the most liberal of lenses, these Yogyakarta Principles, consisting of a declaration formulated
by various international law professors, are at best de lege ferenda and do not constitute binding obligations on the

xxxx

Philippines. Indeed, so much of contemporary international law is characterized by the soft law nomenclature, i.e.,

15. The effective implementation of the right and the opportunity to stand for elective
office ensures that persons entitled to vote have a free choice of candidates. Any restrictions on the
right to stand for election, such as minimum age, must be justifiable on objective and reasonable
criteria. Persons who are otherwise eligible to stand for election should not be excluded by
unreasonable or discriminatory requirements such as education, residence or descent, or by reason
of political affiliation. No person should suffer discrimination or disadvantage of any kind because
of that person's candidacy. States parties should indicate and explain the legislative provisions
which exclude any group or category of persons from elective office.[50]

international law is full of principles that promote international cooperation, harmony, and respect for human rights,

We stress, however, that although this Court stands willing to assume the responsibility of giving effect to
the Philippines international law obligations, the blanket invocation of international law is not the panacea for all
social ills. We refer now to the petitioners invocation of the Yogyakarta Principles (the Application of International
Human Rights Law In Relation to Sexual Orientation and Gender Identity), [51] which petitioner declares to reflect
binding principles of international law.

most of which amount to no more than well-meaning desires, without the support of either State practice or opinio
juris.[53]
As a final note, we cannot help but observe that the social issues presented by this case are emotionally
charged, societal attitudes are in flux, even the psychiatric and religious communities are divided in opinion. This
Courts role is not to impose its own view of acceptable behavior. Rather, it is to apply the Constitution and laws as
best as it can, uninfluenced by public opinion, and confident in the knowledge that our democracy is resilient enough
to withstand vigorous debate.
WHEREFORE, the Petition is hereby GRANTED. The Resolutions of the Commission on Elections
dated November 11, 2009 and December 16, 2009 in SPP No. 09-228 (PL) are hereby SET ASIDE. The

Commission on Elections is directed to GRANT petitioners application for party-list accreditation.

At this time, we are not prepared to declare that these Yogyakarta Principles contain norms that are SO ORDERED.
obligatory on the Philippines. There are declarations and obligations outlined in said Principles which are not
reflective of the current state of international law, and do not find basis in any of the sources of international law
enumerated under Article 38(1) of the Statute of the International Court of Justice. [52] Petitioner has not undertaken
any objective and rigorous analysis of these alleged principles of international law to ascertain their true status.

[G.R. No. 162994. September 17, 2004]

Even before they got married, Tecson received several reminders from his District Manager
regarding the conflict of interest which his relationship with Bettsy might engender. Still, love prevailed,
DUNCAN ASSOCIATION OF DETAILMAN-PTGWO and PEDRO A. TECSON, petitioners, and Tecson married Bettsy in September 1998.
vs. GLAXO WELLCOME PHILIPPINES, INC. respondent.
In January 1999, Tecsons superiors informed him that his marriage to Bettsy gave rise to a conflict of
interest. Tecsons superiors reminded him that he and Bettsy should decide which one of them would
RE SOLUTION
resign from their jobs, although they told him that they wanted to retain him as much as possible because
he was performing his job well.
TINGA, J.:
Tecson requested for time to comply with the company policy against entering into a relationship
Confronting the Court in this petition is a novel question, with constitutional overtones, involving the
with
an
employee of a competitor company. He explained that Astra, Bettsys employer, was planning to
validity of the policy of a pharmaceutical company prohibiting its employees from marrying employees of
merge with Zeneca, another drug company; and Bettsy was planning to avail of the redundancy package to
any competitor company.
be offered by Astra. With Bettsys separation from her company, the potential conflict of interest would be
[1]
This is a Petition for Review on Certiorari assailing the Decision dated May 19, 2003 and eliminated. At the same time, they would be able to avail of the attractive redundancy package from Astra.
the Resolution dated March 26, 2004 of the Court of Appeals in CA-G.R. SP No. 62434.[2]
In August 1999, Tecson again requested for more time resolve the problem. In September 1999,
Tecson
applied for a transfer in Glaxos milk division, thinking that since Astra did not have a milk
Petitioner Pedro A. Tecson (Tecson) was hired by respondent Glaxo Wellcome Philippines, Inc.
(Glaxo) as medical representative on October 24, 1995, after Tecson had undergone training and division, the potential conflict of interest would be eliminated. His application was denied in view of
Glaxos least-movement-possible policy.
orientation.
In November 1999, Glaxo transferred Tecson to the Butuan City-Surigao City-Agusan del Sur sales
Thereafter, Tecson signed a contract of employment which stipulates, among others, that he agrees to
area.
Tecson asked Glaxo to reconsider its decision, but his request was denied.
study and abide by existing company rules; to disclose to management any existing or future relationship
by consanguinity or affinity with co-employees or employees of competing drug companies and should
Tecson sought Glaxos reconsideration regarding his transfer and brought the matter to Glaxos
management find that such relationship poses a possible conflict of interest, to resign from the company.
Grievance Committee. Glaxo, however, remained firm in its decision and gave Tescon until February 7,
The Employee Code of Conduct of Glaxo similarly provides that an employee is expected to inform 2000 to comply with the transfer order. Tecson defied the transfer order and continued acting as medical
management of any existing or future relationship by consanguinity or affinity with co-employees or representative in the Camarines Sur-Camarines Norte sales area.
employees of competing drug companies. If management perceives a conflict of interest or a potential
During the pendency of the grievance proceedings, Tecson was paid his salary, but was not issued
conflict between such relationship and the employees employment with the company, the management and
the employee will explore the possibility of a transfer to another department in a non-counterchecking samples of products which were competing with similar products manufactured by Astra. He was also not
included in product conferences regarding such products.
position or preparation for employment outside the company after six months.
Because the parties failed to resolve the issue at the grievance machinery level, they submitted the
matter
for voluntary arbitration. Glaxo offered Tecson a separation pay of one-half () month pay for every
area.
year of service, or a total of P50,000.00 but he declined the offer. On November 15, 2000, the National
Subsequently, Tecson entered into a romantic relationship with Bettsy, an employee of Astra Conciliation and Mediation Board (NCMB) rendered its Decisiondeclaring as valid Glaxos policy on
Pharmaceuticals[3] (Astra), a competitor of Glaxo. Bettsy was Astras Branch Coordinator in Albay. She relationships between its employees and persons employed with competitor companies, and affirming
supervised the district managers and medical representatives of her company and prepared marketing Glaxos right to transfer Tecson to another sales territory.
strategies for Astra in that area.
Tecson was initially assigned to market Glaxos products in the Camarines Sur-Camarines Norte sales

Aggrieved, Tecson filed a Petition for Review with the Court of Appeals assailing the
It likewise asserts that the policy does not prohibit marriage per se but only proscribes existing or
NCMB Decision.
future relationships with employees of competitor companies, and is therefore not violative of the equal
protection clause. It maintains that considering the nature of its business, the prohibition is based on valid
On May 19, 2003, the Court of Appeals promulgated its Decision denying the Petition for Review on grounds.[11]
the ground that the NCMB did not err in rendering its Decision. The appellate court held that Glaxos
policy prohibiting its employees from having personal relationships with employees of competitor
According to Glaxo, Tecsons marriage to Bettsy, an employee of Astra, posed a real and potential
companies is a valid exercise of its management prerogatives. [4]
conflict of interest. Astras products were in direct competition with 67% of the products sold by
Glaxo. Hence, Glaxos enforcement of the foregoing policy in Tecsons case was a valid exercise of its
Tecson filed a Motion for Reconsideration of the appellate courts Decision, but the motion was management prerogatives.[12] In any case, Tecson was given several months to remedy the situation, and
was even encouraged not to resign but to ask his wife to resign from Astra instead. [13]
denied by the appellate court in its Resolution dated March 26, 2004.[5]
Glaxo also points out that Tecson can no longer question the assailed company policy because when
Petitioners filed the instant petition, arguing therein that (i) the Court of Appeals erred in affirming
the NCMBs finding that the Glaxos policy prohibiting its employees from marrying an employee of a he signed his contract of employment, he was aware that such policy was stipulated therein. In said
competitor company is valid; and (ii) the Court of Appeals also erred in not finding that Tecson was contract, he also agreed to resign from respondent if the management finds that his relationship with an
constructively dismissed when he was transferred to a new sales territory, and deprived of the opportunity employee of a competitor company would be detrimental to the interests of Glaxo.[14]
to attend products seminars and training sessions.[6]
Glaxo likewise insists that Tecsons reassignment to another sales area and his exclusion from
Petitioners contend that Glaxos policy against employees marrying employees of competitor seminars regarding respondents new products did not amount to constructive dismissal.
companies violates the equal protection clause of the Constitution because it creates invalid distinctions
among employees on account only of marriage. They claim that the policy restricts the employees right to
It claims that in view of Tecsons refusal to resign, he was relocated from the Camarines Sur[7]
marry.
Camarines Norte sales area to the Butuan City-Surigao City and Agusan del Sur sales area.Glaxo asserts
that in effecting the reassignment, it also considered the welfare of Tecsons family. Since Tecsons
They also argue that Tecson was constructively dismissed as shown by the following circumstances: hometown was in Agusan del Sur and his wife traces her roots to ButuanCity, Glaxo assumed that his
(1) he was transferred from the Camarines Sur-Camarines Norte sales area to the Butuan-Surigao-Agusan transfer from the Bicol region to the Butuan City sales area would be favorable to him and his family as he
sales area, (2) he suffered a diminution in pay, (3) he was excluded from attending seminars and training would be relocating to a familiar territory and minimizing his travel expenses. [15]
sessions for medical representatives, and (4) he was prohibited from promoting respondents products
which were competing with Astras products.[8]
In addition, Glaxo avers that Tecsons exclusion from the seminar concerning the new anti-asthma
drug was due to the fact that said product was in direct competition with a drug which was soon to be sold
In its Comment on the petition, Glaxo argues that the company policy prohibiting its employees from by Astra, and hence, would pose a potential conflict of interest for him. Lastly, the delay in Tecsons receipt
having a relationship with and/or marrying an employee of a competitor company is a valid exercise of its of his sales paraphernalia was due to the mix-up created by his refusal to transfer to the Butuan City sales
management prerogatives and does not violate the equal protection clause; and that Tecsons reassignment area (his paraphernalia was delivered to his new sales area instead of Naga City because the supplier
from the Camarines Norte-Camarines Sur sales area to the Butuan City-Surigao City and Agusan del Sur thought he already transferred to Butuan).[16]
sales area does not amount to constructive dismissal.[9]
The Court is tasked to resolve the following issues: (1) Whether the Court of Appeals erred in ruling
Glaxo insists that as a company engaged in the promotion and sale of pharmaceutical products, it has that Glaxos policy against its employees marrying employees from competitor companies is valid, and in
a genuine interest in ensuring that its employees avoid any activity, relationship or interest that may not holding that said policy violates the equal protection clause of the Constitution; (2) Whether Tecson
conflict with their responsibilities to the company. Thus, it expects its employees to avoid having personal was constructively dismissed.
or family interests in any competitor company which may influence their actions and decisions and
consequently deprive Glaxo of legitimate profits. The policy is also aimed at preventing a competitor
The Court finds no merit in the petition.
company from gaining access to its secrets, procedures and policies.[10]

The stipulation in Tecsons contract of employment with Glaxo being questioned by petitioners Wellcome. Employees must be prepared for possible resignation within six (6) months, if no other solution
provides:
is feasible.[19]
10. You agree to disclose to management any existing or future relationship you may have, either by
consanguinity or affinity with co-employees or employees of competing drug companies. Should it pose a
possible conflict of interest in management discretion, you agree to resign voluntarily from the Company
as a matter of Company policy.
[17]

No reversible error can be ascribed to the Court of Appeals when it ruled that Glaxos policy
prohibiting an employee from having a relationship with an employee of a competitor company is a valid
exercise of management prerogative.
Glaxo has a right to guard its trade secrets, manufacturing formulas, marketing strategies and other
confidential programs and information from competitors, especially so that it and Astra are rival
companies in the highly competitive pharmaceutical industry.

The same contract also stipulates that Tecson agrees to abide by the existing company rules of Glaxo,
and to study and become acquainted with such policies.[18] In this regard, the Employee Handbook of
The prohibition against personal or marital relationships with employees of competitor companies
Glaxo expressly informs its employees of its rules regarding conflict of interest:
upon Glaxos employees is reasonable under the circumstances because relationships of that nature might
compromise the interests of the company. In laying down the assailed company policy, Glaxo only aims to
protect its interests against the possibility that a competitor company will gain access to its secrets and
1. Conflict of Interest
procedures.
Employees should avoid any activity, investment relationship, or interest that may run counter to the
That Glaxo possesses the right to protect its economic interests cannot be denied. No less than the
responsibilities which they owe Glaxo Wellcome.
Constitution recognizes the right of enterprises to adopt and enforce such a policy to protect its right to
reasonable returns on investments and to expansion and growth. [20] Indeed, while our laws endeavor to
Specifically, this means that employees are expected:
give life to the constitutional policy on social justice and the protection of labor, it does not mean that
every labor dispute will be decided in favor of the workers. The law also recognizes that management has
a. To avoid having personal or family interest, financial or otherwise, in any competitor supplier or
[21]
other businesses which may consciously or unconsciously influence their actions or decisions and rights which are also entitled to respect and enforcement in the interest of fair play.
thus deprive Glaxo Wellcome of legitimate profit.
b. To refrain from using their position in Glaxo Wellcome or knowledge of Company plans to
advance their outside personal interests, that of their relatives, friends and other businesses.
c. To avoid outside employment or other interests for income which would impair their effective job
performance.
d. To consult with Management on such activities or relationships that may lead to conflict of interest.
1.1. Employee Relationships
Employees with existing or future relationships either by consanguinity or affinity with co-employees of
competing drug companies are expected to disclose such relationship to the Management. If management
perceives a conflict or potential conflict of interest, every effort shall be made, together by management
and the employee, to arrive at a solution within six (6) months, either by transfer to another department in
a non-counter checking position, or by career preparation toward outside employment after Glaxo

As held in a Georgia, U.S.A case,[22] it is a legitimate business practice to guard business

confidentiality and protect a competitive position by even-handedly disqualifying from jobs male and
female applicants or employees who are married to a competitor. Consequently, the court ruled than an
employer that discharged an employee who was married to an employee of an active competitor did not
violate Title VII of the Civil Rights Act of 1964. [23] The Court pointed out that the policy was applied to
men and women equally, and noted that the employers business was highly competitive and that gaining
inside information would constitute a competitive advantage.
The challenged company policy does not violate the equal protection clause of the Constitution as
petitioners erroneously suggest. It is a settled principle that the commands of the equal protection clause
are addressed only to the state or those acting under color of its authority. [24] Corollarily, it has been held in
a long array of U.S. Supreme Court decisions that the equal protection clause erects no shield against
merely private conduct, however, discriminatory or wrongful. [25] The only exception occurs when the
state[26] in any of its manifestations or actions has been found to have become entwined or involved in the
wrongful private conduct.[27] Obviously, however, the exception is not present in this case. Significantly,
the company actually enforced the policy after repeated requests to the employee to comply with the

policy. Indeed, the application of the policy was made in an impartial and even-handed manner, with due participation in the market war characterized as it is by stiff competition among pharmaceutical
regard for the lot of the employee.
companies. Moreover, and this is significant, petitioners sales territory covers Camarines Sur and
Camarines Norte while his wife is supervising a branch of her employer in Albay. The proximity of their
In any event, from the wordings of the contractual provision and the policy in its employee areas of responsibility, all in the same Bicol Region, renders the conflict of interest not only possible, but
handbook, it is clear that Glaxo does not impose an absolute prohibition against relationships between its actual, as learning by one spouse of the others market strategies in the region would be
employees and those of competitor companies. Its employees are free to cultivate relationships with and inevitable. [Managements] appreciation of a conflict of interest is therefore not merely illusory and
marry persons of their own choosing. What the company merely seeks to avoid is a conflict of interest wanting in factual basis[31]
between the employee and the company that may arise out of such relationships. As succinctly explained
by the appellate court, thus:
In Abbott Laboratories (Phils.), Inc. v. National Labor Relations Commission,[32] which involved a
complaint filed by a medical representative against his employer drug company for illegal dismissal for
The policy being questioned is not a policy against marriage. An employee of the company remains free to allegedly terminating his employment when he refused to accept his reassignment to a new area, the Court
upheld the right of the drug company to transfer or reassign its employee in accordance with its
marry anyone of his or her choosing. The policy is not aimed at restricting a personal prerogative that
operational demands and requirements. The ruling of the Court therein, quoted hereunder, also finds
belongs only to the individual. However, an employees personal decision does not detract the employer
application in the instant case:
from exercising management prerogatives to ensure maximum profit and business success. . . [28]
The Court of Appeals also correctly noted that the assailed company policy which forms part of
respondents Employee Code of Conduct and of its contracts with its employees, such as that signed by
Tecson, was made known to him prior to his employment. Tecson, therefore, was aware of that restriction
when he signed his employment contract and when he entered into a relationship with Bettsy. Since
Tecson knowingly and voluntarily entered into a contract of employment with Glaxo, the stipulations
therein have the force of law between them and, thus, should be complied with in good faith.[29] He is
therefore estopped from questioning said policy.
The Court finds no merit in petitioners contention that Tecson was constructively dismissed when he
was transferred from the Camarines Norte-Camarines Sur sales area to the Butuan City-Surigao CityAgusan del Sur sales area, and when he was excluded from attending the companys seminar on new
products which were directly competing with similar products manufactured by Astra. Constructive
dismissal is defined as a quitting, an involuntary resignation resorted to when continued employment
becomes impossible, unreasonable, or unlikely; when there is a demotion in rank or diminution in pay; or
when a clear discrimination, insensibility or disdain by an employer becomes unbearable to the employee.
[30]
None of these conditions are present in the instant case. The record does not show that Tecson was
demoted or unduly discriminated upon by reason of such transfer. As found by the appellate court, Glaxo
properly exercised its management prerogative in reassigning Tecson to the Butuan City sales area:
. . . In this case, petitioners transfer to another place of assignment was merely in keeping with the policy
of the company in avoidance of conflict of interest, and thus validNote that [Tecsons] wife holds a
sensitive supervisory position as Branch Coordinator in her employer-company which requires her to
work in close coordination with District Managers and Medical Representatives. Her duties include
monitoring sales of Astra products, conducting sales drives, establishing and furthering relationship with
customers, collection, monitoring and managing Astras inventoryshe therefore takes an active

By the very nature of his employment, a drug salesman or medical representative is expected to travel. He
should anticipate reassignment according to the demands of their business. It would be a poor drug
corporation which cannot even assign its representatives or detail men to new markets calling for opening
or expansion or to areas where the need for pushing its products is great. More so if such reassignments
are part of the employment contract.[33]
As noted earlier, the challenged policy has been implemented by Glaxo impartially and
disinterestedly for a long period of time. In the case at bar, the record shows that Glaxo gave Tecson
several chances to eliminate the conflict of interest brought about by his relationship with Bettsy. When
their relationship was still in its initial stage, Tecsons supervisors at Glaxo constantly reminded him about
its effects on his employment with the company and on the companys interests. After Tecson married
Bettsy, Glaxo gave him time to resolve the conflict by either resigning from the company or asking his
wife to resign from Astra. Glaxo even expressed its desire to retain Tecson in its employ because of his
satisfactory performance and suggested that he ask Bettsy to resign from her company instead. Glaxo
likewise acceded to his repeated requests for more time to resolve the conflict of interest. When the
problem could not be resolved after several years of waiting, Glaxo was constrained to reassign Tecson to
a sales area different from that handled by his wife for Astra. Notably, the Court did not terminate Tecson
from employment but only reassigned him to another area where his home province, Agusan del Sur, was
included. In effecting Tecsons transfer, Glaxo even considered the welfare of Tecsons family. Clearly, the
foregoing dispels any suspicion of unfairness and bad faith on the part of Glaxo.[34]
WHEREFORE, the Petition is DENIED for lack of merit. Costs against petitioners.
SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 164774

April 12, 2006

STAR PAPER CORPORATION, JOSEPHINE ONGSITCO & SEBASTIAN CHUA, Petitioners,

vs.
RONALDO D. SIMBOL, WILFREDA N. COMIA & LORNA E. ESTRELLA, Respondents.
DECISION
PUNO, J.:
We are called to decide an issue of first impression: whether the policy of the employer banning spouses
from working in the same company violates the rights of the employee under the Constitution and the
Labor Code or is a valid exercise of management prerogative.
At bar is a Petition for Review on Certiorari of the Decision of the Court of Appeals dated August 3, 2004
in CA-G.R. SP No. 73477 reversing the decision of the National Labor Relations Commission (NLRC)
which affirmed the ruling of the Labor Arbiter.
Petitioner Star Paper Corporation (the company) is a corporation engaged in trading principally of paper
products. Josephine Ongsitco is its Manager of the Personnel and Administration Department while
Sebastian Chua is its Managing Director.
The evidence for the petitioners show that respondents Ronaldo D. Simbol (Simbol), Wilfreda N. Comia
(Comia) and Lorna E. Estrella (Estrella) were all regular employees of the company.1

Simbol was employed by the company on October 27, 1993. He met Alma Dayrit, also an employee of the Respondents later filed a complaint for unfair labor practice, constructive dismissal, separation pay and
company, whom he married on June 27, 1998. Prior to the marriage, Ongsitco advised the couple that
attorneys fees. They averred that the aforementioned company policy is illegal and contravenes Article
should they decide to get married, one of them should resign pursuant to a company policy promulgated in 136 of the Labor Code. They also contended that they were dismissed due to their union membership.
1995,2 viz.:
On May 31, 2001, Labor Arbiter Melquiades Sol del Rosario dismissed the complaint for lack of
1. New applicants will not be allowed to be hired if in case he/she has [a] relative, up to [the] 3rd merit, viz.:
degree of relationship, already employed by the company.
[T]his company policy was decreed pursuant to what the respondent corporation perceived as management
2. In case of two of our employees (both singles [sic], one male and another female) developed a prerogative. This management prerogative is quite broad and encompassing for it covers hiring, work
friendly relationship during the course of their employment and then decided to get married, one assignment, working method, time, place and manner of work, tools to be used, processes to be followed,
of them should resign to preserve the policy stated above.3
supervision of workers, working regulations, transfer of employees, work supervision, lay-off of workers
and the discipline, dismissal and recall of workers. Except as provided for or limited by special law, an
employer is free to regulate, according to his own discretion and judgment all the aspects of
Simbol resigned on June 20, 1998 pursuant to the company policy.4
employment.9 (Citations omitted.)
Comia was hired by the company on February 5, 1997. She met Howard Comia, a co-employee, whom
she married on June 1, 2000. Ongsitco likewise reminded them that pursuant to company policy, one must On appeal to the NLRC, the Commission affirmed the decision of the Labor Arbiter on January 11,
2002. 10
resign should they decide to get married. Comia resigned on June 30, 2000.5
Estrella was hired on July 29, 1994. She met Luisito Zuiga (Zuiga), also a co-worker. Petitioners stated
that Zuiga, a married man, got Estrella pregnant. The company allegedly could have terminated her
services due to immorality but she opted to resign on December 21, 1999.6

Respondents filed a Motion for Reconsideration but was denied by the NLRC in a Resolution 11 dated
August 8, 2002. They appealed to respondent court via Petition for Certiorari.
In its assailed Decision dated August 3, 2004, the Court of Appeals reversed the NLRC decision, viz.:

The respondents each signed a Release and Confirmation Agreement. They stated therein that they have
no money and property accountabilities in the company and that they release the latter of any claim or
demand of whatever nature.7

WHEREFORE, premises considered, the May 31, 2002 (sic)12 Decision of the National Labor Relations
Commission is hereby REVERSED and SET ASIDE and a new one is entered as follows:

Respondents offer a different version of their dismissal. Simbol and Comia allege that they did not resign
(1) Declaring illegal, the petitioners dismissal from employment and ordering private
voluntarily; they were compelled to resign in view of an illegal company policy. As to respondent Estrella,
respondents to reinstate petitioners to their former positions without loss of seniority rights with
she alleges that she had a relationship with co-worker Zuiga who misrepresented himself as a married but
full backwages from the time of their dismissal until actual reinstatement; and
separated man. After he got her pregnant, she discovered that he was not separated. Thus, she severed her
relationship with him to avoid dismissal due to the company policy. On November 30, 1999, she met an
(2) Ordering private respondents to pay petitioners attorneys fees amounting to 10% of the
accident and was advised by the doctor at the Orthopedic Hospital to recuperate for twenty-one (21) days.
award and the cost of this suit.13
She returned to work on December 21, 1999 but she found out that her name was on-hold at the gate. She
was denied entry. She was directed to proceed to the personnel office where one of the staff handed her a
On appeal to this Court, petitioners contend that the Court of Appeals erred in holding that:
memorandum. The memorandum stated that she was being dismissed for immoral conduct. She refused to
sign the memorandum because she was on leave for twenty-one (21) days and has not been given a chance
1. x x x the subject 1995 policy/regulation is violative of the constitutional rights towards
to explain. The management asked her to write an explanation. However, after submission of the
marriage and the family of employees and of Article 136 of the Labor Code; and
explanation, she was nonetheless dismissed by the company. Due to her urgent need for money, she later
submitted a letter of resignation in exchange for her thirteenth month pay.8
2. x x x respondents resignations were far from voluntary.14

We affirm.
The 1987 Constitution15 states our policy towards the protection of labor under the following
provisions, viz.:
Article II, Section 18. The State affirms labor as a primary social economic force. It shall protect the rights
of workers and promote their welfare.
xxx
Article XIII, Sec. 3. The State shall afford full protection to labor, local and overseas, organized and
unorganized, and promote full employment and equality of employment opportunities for all.
It shall guarantee the rights of all workers to self-organization, collective bargaining and negotiations, and
peaceful concerted activities, including the right to strike in accordance with law. They shall be entitled to
security of tenure, humane conditions of work, and a living wage. They shall also participate in policy and
decision-making processes affecting their rights and benefits as may be provided by law.
The State shall promote the principle of shared responsibility between workers and employers,
recognizing the right of labor to its just share in the fruits of production and the right of enterprises to
reasonable returns on investments, and to expansion and growth.
The Civil Code likewise protects labor with the following provisions:

Respondents submit that their dismissal violates the above provision. Petitioners allege that its policy
"may appear to be contrary to Article 136 of the Labor Code" but it assumes a new meaning if read
together with the first paragraph of the rule. The rule does not require the woman employee to resign. The
employee spouses have the right to choose who between them should resign. Further, they are free to
marry persons other than co-employees. Hence, it is not the marital status of the employee, per se, that is
being discriminated. It is only intended to carry out its no-employment-for-relatives-within-the-thirddegree-policy which is within the ambit of the prerogatives of management.16
It is true that the policy of petitioners prohibiting close relatives from working in the same company takes
the nature of an anti-nepotism employment policy. Companies adopt these policies to prevent the hiring of
unqualified persons based on their status as a relative, rather than upon their ability.17 These policies focus
upon the potential employment problems arising from the perception of favoritism exhibited towards
relatives.
With more women entering the workforce, employers are also enacting employment policies specifically
prohibiting spouses from working for the same company. We note that two types of employment policies
involve spouses: policies banning only spouses from working in the same company (no-spouse
employment policies), and those banning all immediate family members, including spouses, from
working in the same company (anti-nepotism employment policies).18
Unlike in our jurisdiction where there is no express prohibition on marital discrimination, 19 there are
twenty state statutes20 in the United States prohibiting marital discrimination. Some state courts21 have
been confronted with the issue of whether no-spouse policies violate their laws prohibiting both marital
status and sex discrimination.

Art. 1700. The relation between capital and labor are not merely contractual. They are so impressed with
public interest that labor contracts must yield to the common good. Therefore, such contracts are subject to In challenging the anti-nepotism employment policies in the United States, complainants utilize two
the special laws on labor unions, collective bargaining, strikes and lockouts, closed shop, wages, working theories of employment discrimination: the disparate treatment and the disparate impact. Under
the disparate treatment analysis, the plaintiff must prove that an employment policy is discriminatory on
conditions, hours of labor and similar subjects.
its face. No-spouse employment policies requiring an employee of a particular sex to either quit, transfer,
or be fired are facially discriminatory. For example, an employment policy prohibiting the employer from
Art. 1702. In case of doubt, all labor legislation and all labor contracts shall be construed in favor of the
hiring wives of male employees, but not husbands of female employees, is discriminatory on its face. 22
safety and decent living for the laborer.
The Labor Code is the most comprehensive piece of legislation protecting labor. The case at bar involves
Article 136 of the Labor Code which provides:
Art. 136. It shall be unlawful for an employer to require as a condition of employment or continuation of
employment that a woman employee shall not get married, or to stipulate expressly or tacitly that upon
getting married a woman employee shall be deemed resigned or separated, or to actually dismiss,
discharge, discriminate or otherwise prejudice a woman employee merely by reason of her marriage.

On the other hand, to establish disparate impact, the complainants must prove that a facially neutral
policy has a disproportionate effect on a particular class. For example, although most employment policies
do not expressly indicate which spouse will be required to transfer or leave the company, the policy often
disproportionately affects one sex.23
The state courts rulings on the issue depend on their interpretation of the scope of marital status
discrimination within the meaning of their respective civil rights acts. Though they agree that the term

"marital status" encompasses discrimination based on a person's status as either married, single, divorced,
or widowed, they are divided on whether the term has a broader meaning. Thus, their decisions vary.24
The courts narrowly25 interpreting marital status to refer only to a person's status as married, single,
divorced, or widowed reason that if the legislature intended a broader definition it would have either
chosen different language or specified its intent. They hold that the relevant inquiry is if one is married
rather than to whom one is married. They construe marital status discrimination to include only whether a
person is single, married, divorced, or widowed and not the "identity, occupation, and place of
employment of one's spouse." These courts have upheld the questioned policies and ruled that they did not
violate the marital status discrimination provision of their respective state statutes.
The courts that have broadly26 construed the term "marital status" rule that it encompassed the identity,
occupation and employment of one's spouse. They strike down the no-spouse employment policies based
on the broad legislative intent of the state statute. They reason that the no-spouse employment policy
violate the marital status provision because it arbitrarily discriminates against all spouses of present
employees without regard to the actual effect on the individual's qualifications or work
performance.27 These courts also find the no-spouse employment policy invalid for failure of the employer
to present any evidence of business necessity other than the general perception that spouses in the same
workplace might adversely affect the business.28 They hold that the absence of such a bona fide
occupational qualification29 invalidates a rule denying employment to one spouse due to the current
employment of the other spouse in the same office.30 Thus, they rule that unless the employer can prove
that the reasonable demands of the business require a distinction based on marital status and there is no
better available or acceptable policy which would better accomplish the business purpose, an employer
may not discriminate against an employee based on the identity of the employees spouse. 31 This is known
as the bona fide occupational qualification exception.

other confidential programs and information from competitors. We considered the prohibition against
personal or marital relationships with employees of competitor companies upon Glaxos
employees reasonable under the circumstances because relationships of that nature might compromise the
interests of Glaxo. In laying down the assailed company policy, we recognized that Glaxo only aims to
protect its interests against the possibility that a competitor company will gain access to its secrets and
procedures.35
The requirement that a company policy must be reasonable under the circumstances to qualify as a valid
exercise of management prerogative was also at issue in the 1997 case of Philippine Telegraph and
Telephone Company v. NLRC.36 In said case, the employee was dismissed in violation of petitioners
policy of disqualifying from work any woman worker who contracts marriage. We held that the company
policy violates the right against discrimination afforded all women workers under Article 136 of the Labor
Code, but established a permissible exception, viz.:
[A] requirement that a woman employee must remain unmarried could be justified as a "bona fide
occupational qualification," or BFOQ, where the particular requirements of the job would justify the
same, but not on the ground of a general principle, such as the desirability of spreading work in the
workplace. A requirement of that nature would be valid provided it reflects an inherent quality reasonably
necessary for satisfactory job performance.37 (Emphases supplied.)
The cases of Duncan and PT&T instruct us that the requirement of reasonableness must
be clearly established to uphold the questioned employment policy. The employer has the burden to prove
the existence of a reasonable business necessity. The burden was successfully discharged in Duncan but
not in PT&T.
We do not find a reasonable business necessity in the case at bar.

We note that since the finding of a bona fide occupational qualification justifies an employers no-spouse
rule, the exception is interpreted strictly and narrowly by these state courts. There must be a compelling
business necessity for which no alternative exists other than the discriminatory practice. 32 To justify a bona
fide occupational qualification, the employer must prove two factors: (1) that the employment
qualification is reasonably related to the essential operation of the job involved; and, (2) that there is a
factual basis for believing that all or substantially all persons meeting the qualification would be unable to
properly perform the duties of the job.33
The concept of a bona fide occupational qualification is not foreign in our jurisdiction. We employ the
standard of reasonableness of the company policy which is parallel to the bona fide occupational
qualification requirement. In the recent case of Duncan Association of Detailman-PTGWO and Pedro
Tecson v. Glaxo Wellcome Philippines, Inc.,34 we passed on the validity of the policy of a
pharmaceutical company prohibiting its employees from marrying employees of any competitor company.
We held that Glaxo has a right to guard its trade secrets, manufacturing formulas, marketing strategies and

Petitioners sole contention that "the company did not just want to have two (2) or more of its employees
related between the third degree by affinity and/or consanguinity" 38 is lame. That the second paragraph
was meant to give teeth to the first paragraph of the questioned rule39 is evidently not the valid reasonable
business necessity required by the law.
It is significant to note that in the case at bar, respondents were hired after they were found fit for the job,
but were asked to resign when they married a co-employee. Petitioners failed to show how the marriage of
Simbol, then a Sheeting Machine Operator, to Alma Dayrit, then an employee of the Repacking Section,
could be detrimental to its business operations. Neither did petitioners explain how this detriment will
happen in the case of Wilfreda Comia, then a Production Helper in the Selecting Department, who married
Howard Comia, then a helper in the cutter-machine. The policy is premised on the mere fear that
employees married to each other will be less efficient. If we uphold the questioned rule without valid

justification, the employer can create policies based on an unproven presumption of a perceived danger at
the expense of an employees right to security of tenure.

Given the lack of sufficient evidence on the part of petitioners that the resignation was voluntary, Estrellas
dismissal is declared illegal.

Petitioners contend that their policy will apply only when one employee marries a co-employee, but they
are free to marry persons other than co-employees. The questioned policy may not facially violate Article
136 of the Labor Code but it creates a disproportionate effect and under the disparate impact theory, the
only way it could pass judicial scrutiny is a showing that it is reasonable despite the discriminatory, albeit
disproportionate, effect. The failure of petitioners to prove a legitimate business concern in imposing the
questioned policy cannot prejudice the employees right to be free from arbitrary discrimination based
upon stereotypes of married persons working together in one company.40

IN VIEW WHEREOF, the Decision of the Court of Appeals in CA-G.R. SP No. 73477 dated August 3,
2004 is AFFIRMED.1avvphil.netSO ORDERED.

Lastly, the absence of a statute expressly prohibiting marital discrimination in our jurisdiction cannot
benefit the petitioners. The protection given to labor in our jurisdiction is vast and extensive that we
cannot prudently draw inferences from the legislatures silence41 that married persons are not protected
under our Constitution and declare valid a policy based on a prejudice or stereotype. Thus, for failure of
petitioners to present undisputed proof of a reasonable business necessity, we rule that the questioned
policy is an invalid exercise of management prerogative. Corollarily, the issue as to whether respondents
Simbol and Comia resigned voluntarily has become moot and academic.
As to respondent Estrella, the Labor Arbiter and the NLRC based their ruling on the singular fact that her
resignation letter was written in her own handwriting. Both ruled that her resignation was voluntary and
thus valid. The respondent court failed to categorically rule whether Estrella voluntarily resigned but
ordered that she be reinstated along with Simbol and Comia.
Estrella claims that she was pressured to submit a resignation letter because she was in dire need of
money. We examined the records of the case and find Estrellas contention to be more in accord with the
evidence. While findings of fact by administrative tribunals like the NLRC are generally given not only
respect but, at times, finality, this rule admits of exceptions,42 as in the case at bar.
Estrella avers that she went back to work on December 21, 1999 but was dismissed due to her alleged
immoral conduct. At first, she did not want to sign the termination papers but she was forced to tender her
resignation letter in exchange for her thirteenth month pay.
The contention of petitioners that Estrella was pressured to resign because she got impregnated by a
married man and she could not stand being looked upon or talked about as immoral43 is incredulous. If she
really wanted to avoid embarrassment and humiliation, she would not have gone back to work at all. Nor
would she have filed a suit for illegal dismissal and pleaded for reinstatement. We have held that in
voluntary resignation, the employee is compelled by personal reason(s) to dissociate himself from
employment. It is done with the intention of relinquishing an office, accompanied by the act of
abandonment. 44 Thus, it is illogical for Estrella to resign and then file a complaint for illegal dismissal.

After

meticulous

consideration

of

all

arguments pro and con, We uphold

the

legality

of

dismissal. Separation pay, however, should be awarded in favor of the employee as an act of social
justice or based on equity. This is so because his dismissal is not for serious misconduct. Neither is it
reflective of his moral character.
ARMANDO G. YRASUEGUI, G.R. No. 168081
Petitioner,
Present:
YNARES-SANTIAGO, J.,

The Facts
Petitioner Armando G. Yrasuegui was a former international flight steward of Philippine Airlines,

Chairperson,
- versus - AUSTRIA-MARTINEZ,
CHICO-NAZARIO,

Inc. (PAL). He stands five feet and eight inches (58) with a large body frame. The proper weight for a man
of his height and body structure is from 147 to 166 pounds, the ideal weight being 166 pounds, as

NACHURA, and
REYES, JJ.

mandated by the Cabin and Crew Administration Manual[1] of PAL.

Promulgated:
PHILIPPINE AIRLINES, INC.,
Respondent. October 17, 2008

The weight problem of petitioner dates back to 1984. Back then, PAL advised him to go on an
extended vacation leave from December 29, 1984 to March 4, 1985 to address his weight

x--------------------------------------------------x

concerns. Apparently,

petitioner

failed

to

meet

the

companys

weight

standards, prompting another leave without pay from March 5, 1985 to November 1985.

DECISION
REYES, R.T., J.:

After meeting the required weight, petitioner was allowed to return to work. But petitioners
weight problem recurred. He again went on leave without pay from October 17, 1988 to February 1989.

THIS case portrays the peculiar story of an international flight steward who was dismissed
On April 26, 1989, petitioner weighed 209 pounds, 43 pounds over his ideal weight. In line with

because of his failure to adhere to the weight standards of the airline company.

company policy, he was removed from flight duty effective May 6, 1989 to July 3, 1989. He was formally
He is now before this Court via a petition for review on certiorari claiming that he was illegally requested to trim down to his ideal weight and report for weight checks on several
dismissed. To buttress his stance, he argues that (1) his dismissal does not fall under 282(e) of the Labor dates. He was also told that he may avail of the services of the company physician should he wish to do
[2]
Code; (2) continuing adherence to the weight standards of the company is not a bona fide occupational so. He was advised that his case will be evaluated on July 3, 1989.

qualification;

and

(3)

he

was

discriminated

because other overweight employees were promoted instead of being disciplined.

against
On February 25, 1989, petitioner underwent weight check. It was discovered that he gained,
instead of losing, weight. He was overweight at 215 pounds, which is 49 pounds beyond the
limit. Consequently, his off-duty status was retained.

On October 17, 1989, PAL Line Administrator Gloria Dizon personally visited petitioner at his petitioner ignored the directive and did not report for weight checks. On June 26, 1990, petitioner was
residence to check on the progress of his effort to lose weight. Petitioner weighed 217 pounds, gaining 2 required to explain his refusal to undergo weight checks.[7]
pounds from his previous weight. After the visit, petitioner made a commitment [3] to reduce weight in a
letter addressed to Cabin Crew Group Manager Augusto Barrios. The letter, in full, reads:

When petitioner tipped the scale on July 30, 1990, he weighed at 212 pounds. Clearly, he was
still way over his ideal weight of 166 pounds.

Dear Sir:
I would like to guaranty my commitment towards a weight loss from 217
pounds to 200 pounds from today until 31 Dec. 1989.
From thereon, I promise to continue reducing at a reasonable percentage until
such time that my ideal weight is achieved.
Likewise, I promise to personally report to your office at the designated time
schedule you will set for my weight check.
Respectfully Yours,
F/S Armando Yrasuegui[4]

From then on, nothing was heard from petitioner until he followed up his case requesting for
leniency on the latter part of 1992. He weighed at 219 pounds on August 20, 1992 and 205
pounds on November 5, 1992.
On November 13, 1992, PAL finally served petitioner a Notice of Administrative Charge for
violation of company standards on weight requirements. He was given ten (10) days from receipt of the
charge within which to file his answer and submit controverting evidence.[8]

Despite the lapse of a ninety-day period given him to reach his ideal weight, petitioner remained
overweight. On January 3, 1990, he was informed of the PAL decision for him to remain grounded until
such time that he satisfactorily complies with the weight standards. Again, he was directed to report every
two weeks for weight checks.

On December 7, 1992, petitioner submitted his Answer.[9] Notably, he did not deny being
overweight. What he claimed, instead, is that his violation, if any, had already been condoned
by PAL since no action has been taken by the company regarding his case since 1988. He also claimed
that PAL discriminated against him because the company has not been fair in treating the cabin crew

Petitioner failed to report for weight checks. Despite that, he was given one more month to

members who are similarly situated.

comply with the weight requirement. As usual, he was asked to report for weight check on different
dates. He was reminded that his grounding would continue pending satisfactory compliance with the
weight standards.[5]

On December 8, 1992, a clarificatory hearing was held where petitioner manifested that he was
undergoing a weight reduction program to lose at least two (2) pounds per week so as to attain his ideal
weight.[10]

Again, petitioner failed to report for weight checks, although he was seen submitting his passport
for processing at the PAL Staff Service Division.

On June 15, 1993, petitioner was formally informed by PAL that due to his inability to attain his
ideal weight, and considering the utmost leniency extended to him which spanned a period covering a total

On April 17, 1990, petitioner was formally warned that a repeated refusal to report for weight
check would be dealt with accordingly. He was given another set of weight check dates. [6] Again,

of almost five (5) years, his services were considered terminated effective immediately.[11]

His motion for reconsideration having been denied, [12] petitioner filed a complaint for illegal

On February 1, 2000, the Labor Arbiter denied [21] the Motion to Quash Writ of
Execution[22] of PAL.

dismissal against PAL.

Labor Arbiter, NLRC and CA Dispositions

On March 6, 2000, PAL appealed the denial of its motion to quash to the NLRC.[23]

On November 18, 1998, Labor Arbiter Valentin C. Reyes ruled[13] that petitioner was illegally
dismissed. The dispositive part of the Arbiter ruling runs as follows:
WHEREFORE, in view of the foregoing, judgment is hereby rendered,
declaring the complainants dismissal illegal, and ordering the respondent to reinstate
him to his former position or substantially equivalent one, and to pay him:
a. Backwages of Php10,500.00 per month from his dismissal on June 15,
1993 until reinstated, which for purposes of appeal is hereby set from June 15, 1993 up
to August 15, 1998 at P651,000.00;
b. Attorneys fees of five percent (5%) of the total award.
SO ORDERED.[14]
The Labor Arbiter held that the weight standards of PAL are reasonable in view of the nature of

On June 23, 2000, the NLRC rendered judgment[24] in the following tenor:
WHEREFORE, premises considered[,] the Decision of the Arbiter dated 18
November 1998 as modified by our findings herein, is hereby AFFIRMED and that part
of the dispositive portion of said decision concerning complainants entitlement
to backwages shall be deemed to refer to complainants entitlement to his
full backwages, inclusive of allowances and to his other benefits or their monetary
equivalent instead of simply backwages, from date of dismissal until his actual
reinstatement or finality hereof. Respondent is enjoined to manifests (sic) its choice of
the form of the reinstatement of complainant, whether physical or through payroll within
ten (10) days from notice failing which, the same shall be deemed as complainants
reinstatement through payroll and execution in case of non-payment shall accordingly
be issued by the Arbiter. Both appeals of respondent thus, are DISMISSED for utter
lack of merit.[25]
According to the NLRC, obesity, or the tendency to gain weight uncontrollably regardless of the

the job of petitioner.[15] However, the weight standards need not be complied with under pain of dismissal amount of food intake, is a disease in itself. [26] As a consequence, there can be no intentional defiance or
since his weight did not hamper the performance of his duties. [16] Assuming that it did, petitioner could be serious misconduct by petitioner to the lawful order of PAL for him to lose weight.[27]
transferred to other positions where his weight would not be a negative factor. [17] Notably, other
overweight employees, i.e., Mr. Palacios, Mr. Cui, and Mr. Barrios, were promoted instead of being
disciplined.[18]

Like the Labor Arbiter, the NLRC found the weight standards of PAL to be reasonable. However,
it found as unnecessary the Labor Arbiter holding that petitioner was not remiss in the performance of his
duties as flight steward despite being overweight. According to the NLRC, the Labor Arbiter should have

Both parties appealed to the National Labor Relations Commission (NLRC).[19]

limited himself to the issue of whether the failure of petitioner to attain his ideal weight constituted willful
defiance of the weight standards of PAL.[28]

On October 8, 1999, the Labor Arbiter issued a writ of execution directing the reinstatement of
petitioner without loss of seniority rights and other benefits.[20]

PAL moved for reconsideration to no avail.[29] Thus, PAL elevated the matter to the Court of
Appeals (CA) via a petition for certiorari under Rule 65 of the 1997 Rules of Civil Procedure.[30]
By Decision dated August 31, 2004, the CA reversed[31] the NLRC:

WHETHER OR NOT THE COURT OF APPEALS GRAVELY ERRED IN

HOLDING THAT PETITIONERS OBESITY CAN BE A GROUND FOR DISMISSAL
UNDER PARAGRAPH (e) OF ARTICLE 282 OF THE LABOR CODE OF
THE PHILIPPINES;

WHEREFORE, premises considered, we hereby GRANT the petition. The

assailed NLRC decision is declared NULL and VOID and is hereby SET ASIDE. The
private respondents complaint is hereby DISMISSED. No costs.

II.
WHETHER OR NOT THE COURT OF APPEALS GRAVELY ERRED IN
HOLDING THAT PETITIONERS DISMISSAL FOR OBESITY CAN BE
PREDICATED ON THE BONA FIDE OCCUPATIONAL QUALIFICATION (BFOQ)
DEFENSE;

SO ORDERED.[32]
The CA opined that there was grave abuse of discretion on the part of the NLRC because it
looked at wrong and irrelevant considerations[33] in evaluating the evidence of the parties. Contrary to the

III.
WHETHER OR NOT THE COURT OF APPEALS GRAVELY ERRED IN HOLDING
THAT PETITIONER WAS NOT UNDULY DISCRIMINATED AGAINST WHEN HE
WAS DISMISSED WHILE OTHER OVERWEIGHT CABIN ATTENDANTS WERE
EITHER GIVEN FLYING DUTIES OR PROMOTED;

NLRC ruling, the weight standards of PAL are meant to be a continuing qualification for an employees
position.[34] The failure to adhere to the weight standards is an analogous cause for the dismissal of an
employee under Article 282(e) of the Labor Code in relation to Article 282(a). It is not willful
disobedience as the NLRC seemed to suggest.[35] Said the CA, the element of willfulness that the NLRC

IV.
WHETHER OR NOT THE COURT OF APPEALS GRAVELY ERRED
WHEN IT BRUSHED ASIDE PETITIONERS CLAIMS FOR REINSTATEMENT
[AND] WAGES ALLEGEDLY FOR BEING MOOT AND ACADEMIC.
[43]
(Underscoring supplied)

decision cites is an irrelevant consideration in arriving at a conclusion on whether the dismissal is legally
proper.[36] In other words, the relevant question to ask is not one of willfulness but one of reasonableness
of the standard and whether or not the employee qualifies or continues to qualify under this standard. [37]

Our Ruling

Just like the Labor Arbiter and the NLRC, the CA held that the weight standards of PAL are reasonable.
[38]

Thus, petitioner was legally dismissed because he repeatedly failed to meet the prescribed weight
I. The obesity of petitioner is a ground for dismissal under Article 282(e) [44] of the Labor

standards.[39] It is obvious that the issue of discrimination was only invoked by petitioner for purposes of
escaping the result of his dismissal for being overweight.[40]

Code.
A reading of the weight standards of PAL would lead to no other conclusion than that they constitute a

On May 10, 2005, the CA denied petitioners motion for reconsideration. [41] Elaborating on its continuing qualification of an employee in order to keep the job. Tersely put, an employee may be
earlier ruling, the CA held that the weight standards of PAL are a bona fide occupational dismissed the moment he is unable to comply with his ideal weight as prescribed by the weight
qualification which, in case of violation, justifies an employees separation from the service. [42]

standards. The dismissal of the employee would thus fall under Article 282(e) of the Labor Code. As
explained by the CA:

Issues
In this Rule 45 petition for review, the following issues are posed for resolution:
I.

x x x [T]he standards violated in this case were not mere orders of the employer; they
were the prescribed weights that a cabin crew must maintain in order to qualify for and
keep his or her position in the company. In other words, they were standards that
establish continuing qualifications for an employees position. In this sense, the failure
to maintain these standards does not fall under Article 282(a) whose express terms
require the element of willfulness in order to be a ground for dismissal. The failure to
meet the employers qualifying standards is in fact a ground that does not squarely fall

under grounds (a) to (d) and is therefore one that falls under Article 282(e) the other
causes analogous to the foregoing.
By its nature, these qualifying standards are norms that apply prior to and after an
employee is hired. They apply prior to employment because these are the standards a
job applicant must initially meet in order to be hired. They apply after hiring because an
employee must continue to meet these standards while on the job in order to keep his
job. Under this perspective, a violation is not one of the faults for which an employee
can be dismissed pursuant to pars. (a) to (d) of Article 282; the employee can be
dismissed simply because he no longer qualifies for his job irrespective of whether or
not the failure to qualify was willful or intentional. x x x[45]

was not accorded due process. Here, petitioner was accorded utmost leniency. He was given more than
four (4) years to comply with the weight standards of PAL.

In the case at bar, the evidence on record militates against petitioners claims that obesity is a
disease. That he was able to reduce his weight from 1984 to 1992 clearly shows that it is possible for him
to lose weight given the proper attitude, determination, and self-discipline. Indeed, during
the clarificatory hearing on December 8, 1992, petitioner himself claimed that [t]he issue is could I bring

Petitioner, though, advances a very interesting argument. He claims that obesity is a physical abnormality

my weight down to ideal weight which is 172, then the answer is yes. I can do it now.[49]

and/or illness.[46] Relying on Nadura v. Benguet Consolidated, Inc.,[47] he says his dismissal is illegal:
True, petitioner claims that reducing weight is costing him a lot of expenses.[50] However,
Conscious of the fact that Naduras case cannot be made to fall squarely within the
specific causes enumerated in subparagraphs 1(a) to (e), Benguet invokes the provisions
of subparagraph 1(f) and says that Naduras illness occasional attacks of asthma is a
cause analogous to them.
Even a cursory reading of the legal provision under consideration is sufficient to
convince anyone that, as the trial court said, illness cannot be included as an analogous
cause by any stretch of imagination.
It is clear that, except the just cause mentioned in sub-paragraph 1(a), all the others
expressly enumerated in the law are due to the voluntary and/or willful act of the
employee. How Nadurasillness could be considered as analogous to any of them is
beyond our understanding, there being no claim or pretense that the same was contracted
through his own voluntary act.[48]

petitioner has only himself to blame. He could have easily availed the assistance of the company
physician, per the advice of PAL.[51] He chose to ignore the suggestion. In fact, he repeatedly failed to
report when required to undergo weight checks, without offering a valid explanation. Thus, his fluctuating
weight indicates absence of willpower rather than an illness.
Petitioner cites Bonnie Cook v. State of Rhode Island, Department of Mental Health, Retardation
and Hospitals,[52] decided by the United States Court of Appeals (First Circuit). In that case, Cook worked
from 1978 to 1980 and from 1981 to 1986 as an institutional attendant for the mentally retarded at the
Ladd Center that was being operated by respondent. She twice resigned voluntarily with an unblemished
record. Even respondent admitted that her performance met the Centers legitimate expectations. In 1988,

The reliance on Nadura is off-tangent. The factual milieu in Nadura is substantially different from the

Cook re-applied for a similar position. At that time, she stood 52 tall and weighed over 320

case at bar. First, Nadura was not decided under the Labor Code. The law applied in that case was

pounds. Respondent claimed that the morbid obesity of plaintiff compromised her ability to evacuate

Republic Act (RA) No. 1787. Second, the issue of flight safety is absent in Nadura, thus, the rationale

patients in case of emergency and it also put her at greater risk of serious diseases.

there cannot apply here. Third, in Nadura, the employee who was a miner, was laid off from work because
of illness, i.e., asthma. Here, petitioner was dismissed for his failure to meet the weight standards

Cook contended that the action of respondent amounted to discrimination on the basis of a

of PAL. He was not dismissed due to illness. Fourth, the issue in Nadura is whether or not the dismissed

handicap. This was in direct violation of Section 504(a) of the Rehabilitation Act of 1973,[53] which

employee is entitled to separation pay and damages. Here, the issue centers on the propriety of the

incorporates the remedies contained in Title VI of the Civil Rights Act of 1964. Respondent claimed,

dismissal of petitioner for his failure to meet the weight standards of PAL. Fifth, in Nadura, the employee

however, that morbid obesity could never constitute a handicap within the purview of the Rehabilitation

Act. Among others, obesity is a mutable condition, thus plaintiff could simply lose weight and rid herself

Employment in particular jobs may not be limited to persons of a particular sex, religion, or national

of concomitant disability.

origin unless the employer can show that sex, religion, or national origin is an actual qualification for
performing the job. The qualification is called a bona fide occupational qualification (BFOQ). [55] In

The appellate Court disagreed and held that morbid obesity is a disability under the

the United States, there are a few federal and many state job discrimination laws that contain an exception

Rehabilitation Act and that respondent discriminated against Cook based on perceived disability. The

allowing an employer to engage in an otherwise unlawful form of prohibited discrimination when the

evidence included expert testimony that morbid obesity is a physiological disorder. It involves a

action is based on a BFOQ necessary to the normal operation of a business or enterprise.[56]

dysfunction of both the metabolic system and the neurological appetite suppressing signal system, which
is capable of causing adverse effects within the musculoskeletal, respiratory, and cardiovascular

Petitioner contends that BFOQ is a statutory defense. It does not exist if there is no statute
providing for it.[57] Further, there is no existing BFOQ statute that could justify his dismissal. [58]

systems. Notably, the Court stated that mutability is relevant only in determining the substantiality of the
Both arguments must fail.

limitation flowing from a given impairment, thus mutability only precludes those conditions that an
individual can easily and quickly reverse by behavioral alteration.

First, the Constitution,[59] the Labor Code,[60] and RA No. 7277[61] or the Magna Carta for Disabled
Unlike Cook, however, petitioner is not morbidly obese. In the words of the District Court for the

Persons[62] contain provisions similar to BFOQ.

District of Rhode Island, Cook was sometime before 1978 at least one hundred pounds more than what is
considered appropriate of her height. According to the Circuit Judge, Cook weighed over 320 pounds in
1988. Clearly, that is not the case here.At his heaviest, petitioner was only less than 50 pounds over his
ideal weight.

Second, in British Columbia Public Service Employee Commission (BSPSERC) v. The British Columbia
Government and Service Employees Union (BCGSEU),[63] the Supreme Court of Canada adopted the socalled Meiorin Test in determining whether an employment policy is justified. Under this test, (1) the
employer must show that it adopted the standard for a purpose rationally connected to the performance of

In fine, We hold that the obesity of petitioner, when placed in the context of his work as flight
attendant, becomes an analogous cause under Article 282(e) of the Labor Code that justifies his dismissal
from the service. His obesity may not be unintended, but is nonetheless voluntary. As the CA correctly
puts it, [v]oluntariness basically means that the just cause is solely attributable to the employee without
any external force influencing or controlling his actions. This element runs through all just causes under
Article 282, whether they be in the nature of a wrongful action or omission. Gross and habitual neglect, a
recognized just cause, is considered voluntary although it lacks the element of intent found in Article

the job;[64] (2) the employer must establish that the standard is reasonably necessary [65] to the
accomplishment of that work-related purpose; and (3) the employer must establish that the standard is
reasonably necessary in order to accomplish the legitimate work-related purpose. Similarly, in Star Paper
Corporation v. Simbol,[66] this Court held that in order to justify a BFOQ, the employer must prove that (1)
the employment qualification is reasonably related to the essential operation of the job involved; and (2)
that there is factual basis for believing that all or substantially all persons meeting the qualification would
be unable to properly perform the duties of the job.[67]

282(a), (c), and (d).[54]

In short, the test of reasonableness of the company policy is used because it is parallel to BFOQ.
[68]

II. The dismissal of petitioner can be predicated on the bona fide occupational qualification
defense.

BFOQ is valid provided it reflects an inherent quality reasonably necessary for satisfactory job

performance.[69]

In Duncan Association of Detailman-PTGWTO v. Glaxo Wellcome Philippines, Inc.,[70] the Court

The task of a cabin crew or flight attendant is not limited to serving meals or attending to the

did not hesitate to pass upon the validity of a company policy which prohibits its employees from whims and caprices of the passengers. The most important activity of the cabin crew is to care for the
marrying employees of a rival company. It was held that the company policy is reasonable considering safety of passengers and the evacuation of the aircraft when an emergency occurs. Passenger safety goes
that its purpose is the protection of the interests of the company against possible competitor infiltration on to the core of the job of a cabin attendant. Truly, airlines need cabin attendants who have the necessary
its trade secrets and procedures.

strength to open emergency doors, the agility to attend to passengers in cramped working conditions, and
the stamina to withstand grueling flight schedules.

Verily, there is no merit to the argument that BFOQ cannot be applied if it has no supporting
statute. Too, the Labor Arbiter,[71] NLRC,[72] and CA[73] are one in holding that the weight standards

On board an aircraft, the body weight and size of a cabin attendant are important factors to

of PAL are reasonable. A common carrier, from the nature of its business and for reasons of public policy, consider in case of emergency. Aircrafts have constricted cabin space, and narrow aisles and exit
is bound to observe extraordinary diligence for the safety of the passengers it transports. [74] It is bound to doors. Thus, the arguments of respondent that [w]hether the airlines flight attendants are overweight or not
carry its passengers safely as far as human care and foresight can provide, using the utmost diligence of has no direct relation to its mission of transporting passengers to their destination; and that the weight
very cautious persons, with due regard for all the circumstances.[75]
The law leaves no room for mistake or oversight on the part of a common carrier. Thus, it is only

standards has nothing to do with airworthiness of respondents airlines, must fail.

The rationale in Western Air Lines v. Criswell[76] relied upon by petitioner cannot apply to his

logical to hold that the weight standards of PAL show its effort to comply with the exacting obligations

case. What was involved there were two (2) airline pilots who were denied reassignment as flight

imposed upon it by law by virtue of being a common carrier.

engineers upon reaching the age of 60, and a flight engineer who was forced to retire at age 60. They sued

The business of PAL is air transportation. As such, it has committed itself to safely transport its

the airline company, alleging that the age-60 retirement for flight engineers violated the Age

passengers. In order to achieve this, it must necessarily rely on its employees, most particularly the cabin

Discrimination in Employment Act of 1967. Age-based BFOQ and being overweight are not the

flight deck crew who are on board the aircraft. The weight standards of PAL should be viewed as

same. The case of overweight cabin attendants is another matter. Given the cramped cabin space and

imposing strict norms of discipline upon its employees.

narrow aisles and emergency exit doors of the airplane, any overweight cabin attendant would certainly
have difficulty navigating the cramped cabin area.

In other words, the primary objective of PAL in the imposition of the weight standards for cabin
crew is flight safety. It cannot be gainsaid that cabin attendants must maintain agility at all times in order

In short, there is no need to individually evaluate their ability to perform their task. That an obese

to inspire passenger confidence on their ability to care for the passengers when something goes wrong. It

cabin attendant occupies more space than a slim one is an unquestionable fact which courts can judicially

is not farfetched to say that airline companies, just like all common carriers, thrive due to public

recognize without introduction of evidence.[77] It would also be absurd to require airline companies to

confidence on their safety records. People, especially the riding public, expect no less than that

reconfigure the aircraft in order to widen the aisles and exit doors just to accommodate overweight cabin

airline companiestransport their passengers to their respective destinations safely and soundly. A lesser

attendants like petitioner.

performance is unacceptable.
The biggest problem with an overweight cabin attendant is the possibility of impeding passengers
from evacuating the aircraft, should the occasion call for it. The job of a cabin attendant during

emergencies is to speedily get the passengers out of the aircraft safely. Being overweight necessarily

supposed cabin attendants who are allegedly similarly situated with him. Substantial proof must be shown

impedes mobility. Indeed, in an emergency situation, seconds are what cabin attendants are dealing with,

as to how and why they are similarly situated and the differential treatment petitioner got

not minutes. Three lost seconds can translate into three lost lives. Evacuation might slow down just

from PAL despite the similarity of his situation with other employees.

because a wide-bodied cabin attendant is blocking the narrow aisles. These possibilities are not remote.
Indeed, except for pointing out the names of the supposed overweight cabin attendants, petitioner
miserably failed to indicate their respective ideal weights; weights over their ideal weights; the periods
they were allowed to fly despite their being overweight; the particular flights assigned to them; the
Petitioner is also in estoppel. He does not dispute that the weight standards of PAL were made

discriminating treatment they got from PAL; and other relevant data that could have adequately

known to him prior to his employment. He is presumed to know the weight limit that he must maintain at

established a case of discriminatory treatment by PAL. In the words of the CA, PAL really had no

all times.[78] In fact, never did he question the authority of PAL when he was repeatedly asked to trim

substantial case of discrimination to meet.[82]

down his weight. Bona fides exigit ut quodconvenit fiat. Good faith demands that what is agreed upon
shall be done. Kung ang tao ay tapat kanyang tutuparin ang napagkasunduan.

We are not unmindful that findings of facts of administrative agencies, like the Labor Arbiter and
the NLRC, are accorded respect, even finality.[83] The reason is simple: administrative agencies are experts

Too, the weight standards of PAL provide for separate weight limitations based on height and

in matters within their specific and specialized jurisdiction.[84] But the principle is not a hard and fast

body frame for both male and female cabin attendants. A progressive discipline is imposed to allow non-

rule. It only applies if the findings of facts are duly supported by substantial evidence. If it can be shown

compliant cabin attendants sufficient opportunity to meet the weight standards. Thus, the clear-cut rules

that administrative bodies grossly misappreciated evidence of such nature so as to compel a conclusion to

obviate any possibility for thecommission of abuse or arbitrary action on the part of PAL.

the contrary, their findings of facts must necessarily be reversed. Factual findings of administrative
agencies do not have infallibility and must be set aside when they fail the test of arbitrariness. [85]

III. Petitioner failed to substantiate his claim that he was discriminated against by PAL.
Here, the Labor Arbiter and the NLRC inexplicably misappreciated evidence. We thus annul their
Petitioner next claims that PAL is using passenger safety as a convenient excuse to discriminate

findings.

against him.[79] We are constrained, however, to hold otherwise. We agree with the CA that [t]he element
To make his claim more believable, petitioner invokes the equal protection clause guaranty[86] of

of discrimination came into play in this case as a secondary position for the private respondent in order to
escape the consequence of dismissal that being overweight entailed. It is a confession-and-avoidance

the Constitution. However, in the absence of governmental interference, the liberties guaranteed by the

position that impliedly admitted the cause of dismissal, including the reasonableness of the applicable

Constitution cannot be invoked.[87] Put differently, the Bill of Rights is not meant to be invoked against

standard and the private respondents failure to comply.[80] It is a basic rule in evidence that each party must acts of private individuals.[88] Indeed, the United States Supreme Court, in interpreting the Fourteenth
prove his affirmative allegation.[81]
Since the burden of evidence lies with the party who asserts an affirmative allegation, petitioner
has to prove his allegation with particularity. There is nothing on the records which could support the
finding of discriminatory treatment. Petitioner cannot establish discrimination by simply naming the

Amendment,[89] which is the source of our equal protection guarantee, is consistent in saying that
the equal protection erects no shield against private conduct, however discriminatory or wrongful.
[90]

Private actions, no matter how egregious, cannot violate the equal protection guarantee.[91]

IV. The claims of petitioner for reinstatement and wages are moot.

order of PAL. Neither does it appear on record that he actually rendered services for PAL from the
moment he was dismissed, in order to insist on the payment of his full backwages.

As his last contention, petitioner avers that his claims for reinstatement and wages have not been
mooted. He is entitled to reinstatement and his full backwages, from the time he was illegally dismissed
up to the time that the NLRC was reversed by the CA.

[92]

In insisting that he be reinstated to his actual position despite being overweight, petitioner in
effect wants to render the issues in the present case moot. He asks PAL to comply with the
impossible. Time and again, the Court ruled that the law does not exact compliance with the impossible.

At this point, Article 223 of the Labor Code finds relevance:

In any event, the decision of the Labor Arbiter reinstating a dismissed or separated
employee, insofar as the reinstatement aspect is concerned, shall immediately be
executory, even pending appeal. The employee shall either be admitted back to work
under the same terms and conditions prevailing prior to his dismissal or separation or, at
the option of the employer, merely reinstated in the payroll. The posting of a bond by
the employer shall not stay the execution for reinstatement provided herein.

[100]

V. Petitioner is entitled to separation pay.

Be that as it may, all is not lost for petitioner.
Normally, a legally dismissed employee is not entitled to separation pay. This may be deduced

The law is very clear. Although an award or order of reinstatement is self-executory and does not
require a writ of execution,

[93]

the option to exercise actual reinstatement or payroll reinstatement belongs

to the employer. It does not belong to the employee, to the labor tribunals, or even to the courts.

from the language of Article 279 of the Labor Code that [a]n employee who is unjustly dismissed from
work shall be entitled to reinstatement without loss of seniority rights and other privileges and to his
full backwages, inclusive of allowances, and to his other benefits or their monetary equivalent computed
from the time his compensation was withheld from him up to the time of his actual reinstatement. Luckily

Contrary to the allegation of petitioner that PAL did everything under the sun to frustrate his
immediate return to his previous position,

[94]

for petitioner, this is not an ironclad rule.

there is evidence that PAL opted to physically reinstate him

to a substantially equivalent position in accordance with the order of the Labor

[95]

Arbiter.

In fact, petitioner duly received the return to work notice on February 23, 2001, as shown by his

signature.[96]

Exceptionally, separation pay is granted to a legally dismissed employee as an act social justice,
[101]

or based on equity.[102] In both instances, it is required that the dismissal (1) was not for serious

misconduct; and (2) does not reflect on the moral character of the employee. [103]

Petitioner cannot take refuge in the pronouncements of the Court in a case[97] that [t]he unjustified

Here, We grant petitioner separation pay equivalent to one-half (1/2) months pay for every year

refusal of the employer to reinstate the dismissed employee entitles him to payment of his salaries

of service.[104] It should include regular allowances which he might have been receiving. [105] We are not

effective from the time the employer failed to reinstate him despite the issuance of a writ of

blind to the fact that he was not dismissed for any serious misconduct or to any act which would reflect on

execution

[98]

and even if the order of reinstatement of the Labor Arbiter is reversed on appeal, it is

his moral character. We also recognize that his employment with PAL lasted for more or less a decade.

obligatory on the part of the employer to reinstate and pay the wages of the employee during the period of
appeal until reversal by the higher court.[99] He failed to prove that he complied with the return to work

WHEREFORE,

the

appealed

Decision

of

the

Court

of

Appeals

is AFFIRMED but MODIFIED in that petitioner Armando G. Yrasuegui is entitled to separation pay in

an amount equivalent to one-half (1/2) months pay for every year of service, which should include his
regular allowances.
SO ORDERED.