EN BANC

G.R. No. 243259 - PATRICIA HALAGUENA, MA. ANGELITA L.

PULIDO, MA. TERESITA P. SANTIAGO, MARIANNE V.
KATINDIG, BERNADETTE A. CABALQUINTO, LORNA R. TUGAS,
MARY CHRISTINE A. VILLARETE, CYNTHIA A. STEHMEIER,
ROSE ANNA G. VICTA, NOEMI R. CRESENCIO and other female
flight attendants of PHILIPPINE AIRLINES, Petitioners, v.
PHILIPPINE AIRLINES, INC., Respondent.

Promulgated:

January 10, 2023

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SEPARA TE CONCURRING OPINION

SINGH,J:

I concur with the ponencia that the stipulation providing for

compulsory retirement of female cabin attendants at 55 years old and at 60
years old for male cabin attendants in the collective bargaining agreement
(CBA) subject of this case discriminates against women and is void for being
contrary to law and public policy.

The subject of this dispute is the CBA between the Philippine Airlines,
Inc. (PAL) and the Flight Attendants and Stewards Association of the
Philippines (FASAP), the sole and exclusive bargaining representative of
PAL' s flight attendants, stewards, and pursers. 1 The CBA incorporates the
terms and conditions of the employment of cabin attendants for the years 2000
to 2005. 2

Section 144, Part A of the CBA provides in part:

A. For the Cabin Attendants hired before 22 November 1996:

3. Compulsory Retirement

Decision, p. 2.
2
Id.
 Separate Concurring Opinion 2 G.R. No. 243259

Subject to the grooming standards provisions of this Agreement,

compulsory retirement shall be fifty-five (55) for females and sixty
(60) for males. 3

The petitioners, Patricia Halaguefia, Ma. Angelita L. Pulido, Ma.

Teresita P. Santiago, Marianne V. Katindig, Bernadette A. Cabalquinto, Loma
B. Tugas, Mary Christine A. Villarete, Cynthia A. Stehmeier, Rose Ana G.
Victa, Noemi R. Cresencio and other female flight attendants of PAL
(collectively, the Petitioners), challenge the validity of this provision. 4 They
assert that the provision which mandates a compulsory retirement age for
female flight attendants that is five years earlier than their male counterparts,
discriminates against women and is therefore void for being contrary to the
Constitution, laws, and international conventions. 5

While the Regional Trial Court of Makati City, Branch 147 (RTC)
ruled in favor of the Petitioners and nullified the assailed CBA provision, the
Court of Appeals, in its Decision, dated May 13, 2018 (CA Decision),
reversed the RTC on appeal and held that the CBA provision is valid.

The ponencia correctly granted the Petitioners' appeal and ruled

definitively that the CBA provision discriminates against women and is thus
contrary to law and public policy.

The CA Decision primarily relied on the fact that the assailed provision
is found in the CBA, which is, in tum, mutually agreed upon by PAL and the
FASAP. According to the CA Decision, the provision "cannot be said to be
void or discriminatory because FASAP was free to accept or refuse the
same." 6

I agree with the ponencia that the mere fact that the CBA was agreed
upon by PAL and the FASAP does not guarantee that none of its provisions
may be held void. Indeed, it is fundamental that while parties are free to
stipulate on such terms and conditions as they may deem convenient and that
courts will generally respect the will of the parties to a contract, this is always
subject to a definite exception. 7 Courts may nullify a contractual provision or
even an entire contract if"it is "contrary to law, morals, good customs, public
order, or customs of the place." 8

-' CA Decision, p. 2.
4
Decision, p. 2.
5
Id. at 6.
6
CA Decision, p. 15.
CIVIL CODE OF Tiff PHILIPPINES, art. 1306.
C!vn. CODE OF THE PlIIUPPJNES. art. 1306.
Separate Concurring Opinion 3 G.R. No. 243259

This is even more tn1e in instances where a CBA is involved. As aptly

explained in the ponencia, Article 1700 of the Civil Code of the Philippines
provides that the relations between capital and labor are not merely
contractual. The relationship between employers and employees are
impressed with public interest. 9 Thus, this Court has consistently pronounced
that provisions in a CBA and in contracts involving labor may be nullified if
they are contrary to law, public morals, or public policy. 10

In addition to this, the view that the assailed CBA provision cannot be
discriminatory to women and thus invalid simply because PAL and the
FASAP agreed to include it in the CBA is myopic and ignores the very nature
of discrimination based on gender.

It is a fact that women have been historically discriminated against.

This is why numerous laws have been passed to promote gender equality and
to end the discrimination of women. Thus, that PAL and F ASAP have
historically agreed to compel female flight attendants to retire years earlier
than their male counterparts is no indication that the assailed CBA provision
is not discriminatory. Instead, the persistent inclusion of this type of
provision in the CBAs of PAL and FASAP, without any reasonable
justification (as will be discussed more extensively below), only shows that
the CBA has been used as a tool to perpetuate gender-based discrimination.

That F ASAP and its members agreed to the assailed CBA provision
does not prove that the Petitioners here, as well as the other female flight
attendants of PAL who are similarly situated,· consented to this type of
discrimination. A CBA is entered. into by an employer and a labor union.
Labor unions are majoritarian institutions whose purpose is to promote the
interests of all its members. The interests of the majority of labor union
members do not always coincide with the unique interests of women
employees and other minorities. An agreement that is founded on the
protection and promotion of the interests of the majority cannot be relied upon
to similarly protect and promote the interests of groups of employees which
have been traditionally disadvantaged because of characteristics unique to
them, such as gender. Precisely because women are historically
disadvantaged and do not have access to the kind of power granted to men,
majoritarian institutions and even the instruments of the State have often
functioned to perpetuate discrimination or have passively remained idle while
women suffer.

9 CIVIL CODE or, THE PHIUPPINES~ art. 1700: The relations 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 arc subject to the special laws on labor unions,
collective hargaining, strikes and lockouts, closed shop, wages, working conditions, hours of labor
and similar subjects.
See Halaguefia v. Philippine Airlines, Inc.; 617 Phil. 502 (2009) and Pakistan International Airlines
Corporation v. Opie, 268 Phil. 92 (1990).

/
/
Separate Concurring Opinion 4 G.R. No. 243259

This is why laws were enacted to correct this inequality. This is when
courts must step in to enforce the Constitution and its fundamental precept
that men and women are equal. Thus, a court that is conscious of its role in
fostering equality must analyze gender-related issues carefully and must
explain its analysis in a manner that respects and promotes the empowerment
of women instead of reinforcing gender stereotypes that reinforce the
oppression of women.

Here, the better analysis of the issue should have focused on the purpose
of the assailed CBA provision which imposes an earlier compulsory
retirement age for female flight attendants as compared to male flight
attendants. The provision on its face creates a distinction between men and
women with the intended effect that women are compelled to leave their work
five years earlier than men. The provision does not cite a reason for this
distinction. It appears to base the difference in the treatment between male
and female flight attendants solely on gender.

In the United States, the United States Supreme Court (US SC) has had
the opportunity to rule on similar types of employment qualifications
involving gender discrimination. In United Automobile Workers v. Johnson
Controls (Johnson Controls), 11 the US SC ruled that an employer cannot
enforce a policy that prohibits all female employees of child-bearing age from
lead-exposed jobs because it believed that exposing women to these types of
jobs could jeopardize their ability to reproduce. The US SC ruled that the
employment policy can be justified if it can be considered as a bona fide
occupational qualification (BFOQ). According to the US SC, pregnancy is a
BFOQ that would warrant a different treatment as opposed to male employees
if it can be shown gender relates to the "essence" or to the "central mission of
the employer's business." 12 An employer "cannot discriminate against a
woman because of her capacity to get pregnant unless her reproductive
potential prevents her from performing the duties of the job." 13 In the case of
Johnson Controls, it failed to show that gender and the ability to bear a child
affect a woman's ability to perform the job of making batteries. The US SC
ruled:

Concern for a woman's existing or potential offspring historically has been

the excuse for denying women equal employment opportunities. See, e.g.,
Muller v. Oregon, 208 U. S. 412 (1908). Congress in the PDA prohibited
discrimination on the basis of a woman's ability to become pregnant. We
do no more than hold that fae Pregnancy Discrimination Act means what it
says.

II
499 U.S. 187 (1991).
12
Id
'3
Id
 Separate Concurring Opinion 5 G.R. No. 243259

It is no more appropriate for the courts than it is for individual employers to

decide whether a woman's reproductive role is more important to herself
and her fan1ily than her economic role. Congress has left this choice to the
woman as hers to make. 14

The concept of BFOQs is also recognized in this jurisdiction. In Star

Paper Corp. v. Simbol, 15 the Court ruled:

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 ofDetailman-PTGWO and Pedro Tecson v. Glaxo
Wellcome Philippines, Inc., 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
other confidential programs and information from competitors. We
considered the prohibition against personal or marital relationships with
employees of competitor companies upon Glaxo's
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.

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. In said case, the employee was dismissed in violation
of petitioner's 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. (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

14
Id.
15
52 I Phil. 364 (2006).
''

Separate Concurring Opinion 6 G.R. No. 243259

a reasonable business necessity. The burden was successfully discharged in

Duncan but not in PT &T. (Emphases in the original; citations omitted)

The assailed CBA provision is akin to a BFOQ in that for female flight
attendants, it imposes a different condition for continued employment as
opposed to male flight attendants - i.e., women can only continue working
until the age of 55 while men can remain gainfully employed until the age of
60. PAL, therefore, had the burden of proving the existence of a reasonable
business necessity for this employment policy. As the ponencia observed, the
RTC concluded that PAL "failed to prove any difference between male and
female cabin attendants justifying the implementation of the assailed
provision." 16 In other words, PAL presented no evidence that would establish
the existence of a reasonable business necessity that would justify its policy
of compelling women to retire at the age of 55 while male attendants can
continue with their employment until the age of 60.

The CA ought to have relied on this factual finding of the RTC.

However, the CA Decision instead disregarded the RTC finding and, in
making its own conclusion, relied not on the evidence and the facts on record,
but on its own surmises, conjectures, and speculations and worse, on gender
stereotypes that further reinforce discrimination against women.

Specifically, the CA Decision said:

In this regard, the CBA provision on early retirement for female

flight attendants must be viewed in the context of PAL's obligation to
guarantee the safety of its passengers taking into account the obvious
biological difference between male and female. It must be remembered that
the task of a cabin crew or flight attendant is not limited to serving meals or
attending to the whims and caprices of the passengers. The most important
activity of the cabin crew is to care for the safety of passengers and the
evacuation of the aircraft when an emergency occurs. Passenger safety goes
to the core of the job of a cabin attendant. Truly, airlines need cabin
attendants who have the necessary strength to open emergency doors, the
agility to attend to passengers in cramped working conditions, and the
stamina to withstand grueling flight schedules. 17 (Citations omitted)

In stating that PAL can validly take into account the "obvious biological
difference between male and female" 18 in performing its obligation to
guarantee the safety of its passengers, the CA Decision implies that female
flight attendants, especially those who are close to the mandated retirement
age under the CBA, are weaker and less able to provide safety to PAL's
passengers. There is no empirical basis for this assertion. While there are
biological differences between the anatomy of a man and a woman, there is

I(,
Decision, p. J6.
17
CA Decision, p. 18.
18
Id
Separate Concurring Opinion 7 G.R. No. 243259

no evidence on record, or any authority cited in the CA Decision, that can

confirm that women of a certain age, and women in general, perform less in
jobs that require them to ensure the security of other people.

Further, the CA Decision also quotes the case Yrasuegui v. PAL

(Yrasuegu1) 19 to support its view that female flight attendants can be made to
retire earlier than male flight attendants because "airlines need cabin
attendants who have the necessary strength to open emergency doors, the
agility to attend to passengers in cramped working conditions, and the stamina
to withstand grueling flight schedules."

Yrasuegui involved a male flight attendant who was dismissed from

employment because he was overweight. In this case, the Court ruled that
PAL' s weight requirement is a BFOQ because it was justified by the need to
ensure the passengers' safety. The Court explained:

On board an aircraft, the body weight and size of a cabin attendant

are important factors to consider in case of emergency. Aircrafts have
constricted cabin space, and narrow aisles and exit doors. Thus, the
arguments of respondent that "[w]hether the airline's flight attendants are
overweight or not has no direct relation to its mission of transporting
passengers to their destination" ;and that the weight standards "has nothing
to do with airworthiness of respondent's airlines", must fail.

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

In short, there is no need to individually evaluate their ability to

perform their task. That an obese cabin attendant occupies more space than
a slim one is an unquestionable fact which courts can judicially recognize
without introduction of evidence. It would also be absurd to require airline
companies to reconfigure the aircraft in order to widen the aisles and exit
doors just to accommodate overweight cabin attendants like petitioner.

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 impedes mobility. Indeed, in an emergency situation, seconds
are what cabin attendants are dealing with, not minutes.Three lost seconds
can translate into three lost lives. Evacuation might slow down just because
a wide-bodied cabin attendant is blocking the narrow aisles. These
possibilities are not remote. 20 (Emphases in the original; citations omitted)

19
590 Phil. 490 (2008).
20
Id.
Separate Concurring Opinion 8 G.R. No. 243259

The Court found in Yrasuegui that an overweight cabin attendant's

ability to perform their job is significantly ha.'llpered and thus would pose
danger to PAL's passengers. The Court's ruling was based on facts relating
to the cramped cabin space and narrow aisles in airplanes and the likelihood
that overweight flight attendants can impede the mobility of passengers in
times of emergency.

The CA Decision, in quoting Yrasuegui and in relying on this case to

justify the assailed CBA provision, implicitly suggests that more mature
women, solely because of their gender, are less able to perform their jobs as
flight attendants; that they are akin to flight attendants who fail to meet the
weight requirement; and that they, therefore, pose danger to the lives of
passengers in times of emergency. There is no factual basis for such a
conclusion. Indeed, one need only look at women police officers, women
soldiers, women security guards, to confirm that women are no less capable
of perfonning jobs related to the safety and security of other people. The CA
Decision reinforces stereotypes against women as the "weaker sex" in
concluding, in the face of a dearth of evidence, that women flight attendants
may be made to retire earlier than men because they lose their competence to
perform their jobs at a much earlier age.

The CA Decision also attempts to justify the assailed CA provision by

stating that early retirement can be considered as a "reward for services
rendered since it enables an employee to reap the fruits of his labor -
particularly retirement benefits, whether lump-sum or otherwise- at an earlier
age, when said employee, in presumably better physical and mental condition,
can enjoy them better and longer."21 If it is true that early retirement is a
"reward" granted to employees, there is all the more reason for it to apply
equally to all employees regardless of gender. There is no reasonable
justification for such a "reward" to be made available to women only.

Moreover, the CA Decision states that providing an early retirement

age for female flight attendants "does not necessarily place them at a great
disadvantage." According to the CA Decision:

For one, early retirement creates a great window of opportunity to

make positive lifestyle changes and restore a well-balanced life. Here,
petitioners-appellees will have more time to spend with their families and
friends as well as the opportunity to pursue activities and hobbies that they
may not have had the time to do in the past. Early retirement can also
potentially improve their physical and mental health, which in tum can help
them live a longer and happier life. 22

" CA Decision, p. 18.

Id
Separate Concurring Opinion 9 G.R. No. 243259

These statements are replete with romantic paternalism and gender

stereotypes. They imply that a career woman or a woman who chooses to
work leads a negative lifestyle and does not have a well-balanced life. Thus,
the CA Decision suggests, that early retirement should be welcomed because
women can only achieve a well-balanced life in the absence of work or a
career. The subtext of statements like these is that women are ultimately better
off not working too hard and that employers (and the State, through the courts)
have the authority to make choices about how women should spend their lives.

Certainly, the women's movement has fought too long and too hard for
the Court to allow this type of reasoning to prevail in cases involving
discrimination against women.

Ultimately, the question here is simple: should PAL be allowed to

discriminate against women by forcing them to retire five years earlier than
their male counterparts? The answer is a resounding no. There is no
reasonable business necessity for this difference in treatment. There is no
evidence on record showing that women who reach the age of 55 are less
competent than male flight attendants of the same age. There is no authority
to confirm that women should be made to retire early if an airline intends to
maintain a high level of service and safety for its passengers. To reiterate, the
CA Decision is based on stereotypes, not facts nor science, iri making its
conclusions.

The struggle of women in this country for equality has not been easy
and the road to progress continues to be difficult. And yet, as is the case here,
what women aspire for is fairly simple. It is simply equality before the law -
that women be afforded the same rights, freedoms, and opportunities as are
granted to men. Arguing before the US SC when she was still a lawyer
advocating for women's rights, US SC Supreme Court Justice Ruth Bader
Ginsburg said it best when she pleaded, "I ask no favor for my sex. All I ask
of our brethren is that they take their feet off our necks."

All things considered, I vote to grant the Petition.

F OMENA D. SINGH
//Associate Justice
./