G.R. No.

190582

April 8, 2010

Ladlad first applied for registration with the COMELEC in 2006. The application for
accreditation was denied on the ground that the organization had no substantial
membership base. On August 17, 2009, Ang Ladlad again filed a Petition5 for registration
with the COMELEC.

ANG LADLAD vs. COMMISSION ON ELECTIONS

DECISION
DEL CASTILLO, J.:
... [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.

Before the COMELEC, petitioner argued that the LGBT community is a marginalized and
under-represented sector that is particularly disadvantaged because of their sexual
orientation and gender identity; that 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

Justice Robert A. Jackson

West Virginia State Board of Education v. Barnette 1
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.
Factual Background
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,
20092 (the First Assailed Resolution) and December 16, 2009 3 (the Second Assailed
Resolution) in SPP No. 09-228 (PL) (collectively, the Assailed Resolutions). The 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

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:

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

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

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 welldefined 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
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 x Significantly, 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.

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.

xxxx

On January 6, 2010, we ordered the Office of the Solicitor General (OSG) to file its
Comment on behalf of COMELEC not later than 12:00 noon of January 11, 2010. 11 Instead
of filing a Comment, however, the OSG filed a 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 to fully ventilate its position, we required it to file its own comment. 14 The
COMELEC, through its Law Department, filed its Comment on February 2, 2010. 15

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.

In the meantime, due to the urgency of the petition, we issued a temporary restraining
order on January 12, 2010, effective immediately and continuing until further orders from
this Court, directing the COMELEC to cease and desist from implementing the Assailed
Resolutions.16

xxxx

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 Ladlads petition on moral grounds violated the
standards and principles of the Constitution, the Universal Declaration of Human Rights
(UDHR), and the International Covenant on Civil and Political Rights (ICCPR). On January 19,
2010, we granted the CHRs motion to intervene.

IV. Public Morals

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

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.
Our Ruling

worst, a belated afterthought, a change in respondents theory, and a serious violation of

petitioners right to procedural due process.
Nonetheless, we find that there has been no misrepresentation. A cursory perusal of Ang
Ladlads initial 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 and members
around the country, and 4,044 members in its electronic discussion group. 22 Ang Ladlad
also represented itself to be "a national LGBT umbrella organization with affiliates around
the Philippines composed of the following LGBT networks:"
Abra Gay Association

We grant the petition.

Aklan Butterfly Brigade (ABB) Aklan

Compliance with the Requirements of the Constitution and Republic Act No. 7941

Albay Gay Association

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.

Arts Center of Cabanatuan City Nueva Ecija

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 underrepresented 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.

Cagayan de Oro People Like Us (CDO PLUS)

Boys Legion Metro Manila

Cant Live in the Closet, Inc. (CLIC) Metro Manila

Cebu Pride Cebu City
Circle of Friends
Dipolog Gay Association Zamboanga del Norte

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

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

moral objection and the belated allegation of non-existence, 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.

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
Zamboanga Gay Association Zamboanga City23
Since the COMELEC only searched for the names ANG LADLAD LGBT or LADLAD LGBT, it is
no surprise that they found that petitioner had no presence in any of these regions. In fact,
if COMELECs findings are to be believed, petitioner does not even exist in Quezon City,
which is registered as Ang Ladlads principal place of business.
Against this backdrop, we find that Ang Ladlad has sufficiently demonstrated its
compliance with the legal requirements for accreditation. Indeed, aside from COMELECs

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.1avvphi1
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
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:
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 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 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 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.
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
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 proceedings
and a judicial determination of liability or culpability.
As such, we hold that moral disapproval, without more, is not a sufficient governmental
interest to justify 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 further any substantial
public interest. Respondents blanket justifications give rise to the inevitable conclusion
that the COMELEC targets homosexuals themselves as a class, not because of any
particular morally reprehensible act. It is this selective targeting that implicates our equal
protection clause.
Equal Protection
Despite the absolutism of Article III, Section 1 of our Constitution, which provides "nor shall
any person be denied equal protection of the laws," courts have never interpreted the
provision as an absolute prohibition on classification. "Equality," said Aristotle, "consists in
the same treatment of similar persons."33 The equal protection clause guarantees that no
person or class of persons shall be deprived of the same protection of laws which is
enjoyed by other persons or other classes in the same place and in like circumstances. 34
Recent jurisprudence has affirmed that if a law neither burdens a fundamental right nor
targets a suspect class, we will 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 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
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 COMELECs differentiation, and its
unsubstantiated claim that Ang Ladlad cannot contribute to the formulation of legislation
that would benefit the nation, furthers no legitimate state interest other than disapproval
of or dislike for a disfavored group.
From the standpoint of the political process, the lesbian, gay, bisexual, and transgender
have the same interest in participating in the party-list system on the same basis as other
political parties similarly situated. State intrusion in this case is equally burdensome.
Hence, laws of general application should apply with equal force to LGBTs, and they
deserve to participate in the party-list system on the same basis as other marginalized and
under-represented sectors.
It bears stressing that our finding that COMELECs act of differentiating LGBTs from
heterosexuals insofar as the party-list system is concerned does not imply that any other
law distinguishing between heterosexuals and homosexuals under different circumstances
would similarly fail. We disagree with the OSGs position that homosexuals are a class in
themselves for the purposes of the equal protection clause. 38 We are not prepared to single
out homosexuals as a separate class meriting special or differentiated treatment. We have
not received sufficient 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 unwarranted
and impermissible classification not justified by the circumstances of the case."
Freedom of Expression and Association
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
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.
Freedom of expression constitutes one of the essential foundations of a democratic society,
and this freedom applies not only to those that are favorably received but also to those
that offend, shock, or disturb. Any restriction imposed in this sphere must be proportionate
to the legitimate aim pursued. Absent any compelling state interest, it is not for the
COMELEC or this Court to impose its views on the populace. Otherwise stated, the
COMELEC is certainly not free to interfere with speech for no better reason than promoting
an approved message or discouraging a disfavored one.
This position gains even more force if one considers that homosexual conduct is not illegal
in this country. It follows that both expressions concerning ones homosexuality and the
activity of forming a political association that supports LGBT individuals are protected as
well.
Other jurisdictions have gone so far as to categorically rule that even overwhelming public
perception that homosexual conduct violates public morality does not justify criminalizing
same-sex conduct.41 European and 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
much to learn from other jurisdictions that have reflected on the issues we face here, such
jurisprudence is certainly illuminating. These foreign authorities, while not formally binding
on Philippine courts, may nevertheless have persuasive influence on the Courts analysis.
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 expression of opinion, public institutions must
show that their actions were caused by "something more than a mere desire to avoid the
discomfort and unpleasantness that always accompany an unpopular viewpoint." 43
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 opportunity of expression through the exercise
of the right of association, even if such ideas may seem shocking or unacceptable to the
authorities or the majority of the population.44 A political group should not be hindered
solely because it seeks to publicly debate controversial political issues in order to find
solutions capable of satisfying everyone concerned. 45 Only if a political party incites
violence or puts forward policies that are incompatible with democracy does it fall outside
the protection of the freedom of association guarantee. 46

We do not doubt that a number of our citizens may believe that homosexual conduct is
distasteful, offensive, or even defiant. They are entitled to hold and express that view. On
the other hand, LGBTs and their supporters, in all likelihood, believe with equal fervor that
relationships between individuals of the same sex are morally equivalent to heterosexual
relationships. They, too, are entitled to hold and express that view. However, as far as this
Court is concerned, our democracy precludes using the religious or moral views of one part
of the community to exclude from consideration the values of other members of the
community.
Of course, none of this suggests the impending arrival of a golden age for gay rights
litigants. It well may be that this Decision will only serve to highlight the discrepancy
between the rigid constitutional analysis of this Court and the more complex moral
sentiments of Filipinos. We do not suggest that public opinion, even at its most liberal,
reflect a clear-cut strong consensus favorable to gay rights claims and we neither attempt
nor expect to affect individual perceptions of homosexuality through this Decision.
The OSG argues that since there has been neither prior restraint nor subsequent
punishment imposed on Ang Ladlad, and its members have not been deprived of their right
to voluntarily associate, then there has been no restriction on 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.
xxxx
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.
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 x47
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.
Non-Discrimination and International Law
In an age that has seen international law evolve geometrically in scope and promise,
international human 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 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 nondiscrimination as it relates to the right to electoral participation, enunciated in the UDHR
and the ICCPR.
The principle of non-discrimination is laid out in Article 26 of the ICCPR, as follows:
Article 26
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.
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.
(1) Everyone has the right to take part in the government of his country, directly or
through freely chosen representatives.

Likewise, the ICCPR states:

In Relation to Sexual Orientation and Gender Identity),51 which petitioner declares to reflect
binding principles of international law.

Article 25
Every citizen shall have the right and the opportunity, without any of the distinctions
mentioned in article 2 and without unreasonable restrictions:
(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 the Human Rights Committee in its General Comment No. 25
(Participation in Public Affairs and the Right to Vote) as follows:
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.
xxxx
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

At this time, we are not prepared to declare that these Yogyakarta Principles contain norms
that are 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.
We also hasten to add that not everything that society or a certain segment of society
wants or demands is automatically a human right. This is not an arbitrary human
intervention that may be added to or subtracted from at 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 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.1avvphi1
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 Philippines. Indeed, so much of
contemporary international law is characterized by the "soft law" nomenclature, i.e.,
international law is full of principles that promote international cooperation, harmony, and
respect for human rights, 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. SO ORDERED.
G.R. No. 162994

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

September 17, 2004

TECSON vs. GLAXO WELLCOME PHILIPPINES, INC.

RESOLUTION

TINGA, J.:
Confronting the Court in this petition is a novel question, with constitutional overtones,
involving the validity of the policy of a pharmaceutical company prohibiting its employees
from marrying employees of any competitor company.
This is a Petition for Review on Certiorari assailing the Decision1 dated May 19, 2003 and
the Resolution dated March 26, 2004 of the Court of Appeals in CA-G.R. SP No. 62434. 2
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 orientation.
Thereafter, Tecson signed a contract of employment which stipulates, among others, that
he agrees to 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 management find that such relationship poses a
possible conflict of interest, to resign from the company.
The Employee Code of Conduct of Glaxo similarly provides that an employee is expected to
inform management of any existing or future relationship by consanguinity or affinity with
co-employees or employees of competing drug companies. If management perceives a
conflict of interest or a potential 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 position" or
preparation for employment outside the company after six months.
Tecson was initially assigned to market Glaxos products in the Camarines Sur-Camarines
Norte sales area.
Subsequently, Tecson entered into a romantic relationship with Bettsy, an employee of
Astra Pharmaceuticals3 (Astra), a competitor of Glaxo. Bettsy was Astras Branch
Coordinator in Albay. She supervised the district managers and medical representatives of
her company and prepared marketing strategies for Astra in that area.
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, and Tecson married Bettsy in September 1998.
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 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.

Tecson requested for time to comply with the company policy against entering into a
relationship with an employee of a competitor company. He explained that Astra, Bettsys
employer, was planning to merge with Zeneca, another drug company; and Bettsy was
planning to avail of the redundancy package to be offered by Astra. With Bettsys
separation from her company, the potential conflict of interest would be eliminated. At the
same time, they would be able to avail of the attractive redundancy package from Astra.
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 division, the potential conflict of interest would be eliminated. His application
was denied in view of Glaxos "least-movement-possible" policy.
In November 1999, Glaxo transferred Tecson to the Butuan City-Surigao City-Agusan del
Sur sales area. Tecson asked Glaxo to reconsider its decision, but his request was denied.
Tecson sought Glaxos reconsideration regarding his transfer and brought the matter to
Glaxos Grievance Committee. Glaxo, however, remained firm in its decision and gave
Tescon until February 7, 2000 to comply with the transfer order. Tecson defied the transfer
order and continued acting as medical representative in the Camarines Sur-Camarines
Norte sales area.
During the pendency of the grievance proceedings, Tecson was paid his salary, but was not
issued samples of products which were competing with similar products manufactured by
Astra. He was also not included in product conferences regarding such products.
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 year of service, or a total of P50,000.00 but he declined
the offer. On November 15, 2000, the National Conciliation and Mediation Board (NCMB)
rendered its Decision declaring as valid Glaxos policy on relationships between its
employees and persons employed with competitor companies, and affirming Glaxos right
to transfer Tecson to another sales territory.
Aggrieved, Tecson filed a Petition for Review with the Court of Appeals assailing the NCMB
Decision.
On May 19, 2003, the Court of Appeals promulgated its Decision denying the Petition for
Review on 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 companies is a valid exercise of its management
prerogatives.4
Tecson filed a Motion for Reconsideration of the appellate courts Decision, but the motion
was denied by the appellate court in its Resolution dated March 26, 2004.5

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 competitor company is valid; and (ii) the Court of Appeals also
erred in not finding that Tecson was constructively dismissed when he was transferred to a
new sales territory, and deprived of the opportunity to attend products seminars and
training sessions.6
Petitioners contend that Glaxos policy against employees marrying employees of
competitor 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 marry. 7
They also argue that Tecson was constructively dismissed as shown by the following
circumstances: (1) he was transferred from the Camarines Sur-Camarines Norte sales area
to the Butuan-Surigao-Agusan sales area, (2) he suffered a diminution in pay, (3) he was
excluded from attending seminars and training sessions for medical representatives, and
(4) he was prohibited from promoting respondents products which were competing with
Astras products.8
In its Comment on the petition, Glaxo argues that the company policy prohibiting its
employees from having a relationship with and/or marrying an employee of a competitor
company is a valid exercise of its management prerogatives and does not violate the equal
protection clause; and that Tecsons reassignment from the Camarines Norte-Camarines
Sur sales area to the Butuan City-Surigao City and Agusan del Sur sales area does not
amount to constructive dismissal.9
Glaxo insists that as a company engaged in the promotion and sale of pharmaceutical
products, it has a genuine interest in ensuring that its employees avoid any activity,
relationship or interest that may conflict with their responsibilities to the company. Thus, it
expects its employees to avoid having personal 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 company from
gaining access to its secrets, procedures and policies. 10
It likewise asserts that the policy does not prohibit marriage per se but only proscribes
existing or 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 grounds. 11
According to Glaxo, Tecsons marriage to Bettsy, an employee of Astra, posed a real and
potential 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 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 form Astra instead.13

Glaxo also points out that Tecson can no longer question the assailed company policy
because when he signed his contract of employment, he was aware that such policy was
stipulated therein. In said contract, he also agreed to resign from respondent if the
management finds that his relationship with an employee of a competitor company would
be detrimental to the interests of Glaxo.14
Glaxo likewise insists that Tecsons reassignment to another sales area and his exclusion
from seminars regarding respondents new products did not amount to constructive
dismissal.
It claims that in view of Tecsons refusal to resign, he was relocated from the Camarines
Sur-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 hometown was in Agusan del Sur and his wife traces her
roots to Butuan City, Glaxo assumed that his transfer from the Bicol region to the Butuan
City sales area would be favorable to him and his family as he would be relocating to a
familiar territory and minimizing his travel expenses.15
In addition, Glaxo avers that Tecsons exclusion from the seminar concerning the new antiasthma drug was due to the fact that said product was in direct competition with a drug
which was soon to be sold by Astra, and hence, would pose a potential conflict of interest
for him. Lastly, the delay in Tecsons receipt of his sales paraphernalia was due to the mixup created by his refusal to transfer to the Butuan City sales area (his paraphernalia was
delivered to his new sales area instead of Naga City because the supplier thought he
already transferred to Butuan).16
The Court is tasked to resolve the following issues: (1) Whether the Court of Appeals erred
in ruling that Glaxos policy against its employees marrying employees from competitor
companies is valid, and in not holding that said policy violates the equal protection clause
of the Constitution; (2) Whether Tecson was constructively dismissed.
The Court finds no merit in the petition.
The stipulation in Tecsons contract of employment with Glaxo being questioned by
petitioners provides:

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

The same contract also stipulates that Tescon 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 Glaxo expressly informs its employees of its rules regarding conflict
of interest:

The prohibition against personal or marital relationships with employees of competitor

companies 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 procedures.

1. Conflict of Interest
Employees should avoid any activity, investment relationship, or interest that may
run counter to the responsibilities which they owe Glaxo Wellcome.
Specifically, this means that employees are expected:
a. To avoid having personal or family interest, financial or otherwise, in any
competitor supplier or other businesses which may consciously or
unconsciously influence their actions or decisions and 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 Wellcome. Employees must be prepared
for possible resignation within six (6) months, if no other solution is feasible. 19
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.

That Glaxo possesses the right to protect its economic interests cannot be denied. No less
than the 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 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 rights which are also
entitled to respect and enforcement in the interest of fair play. 21
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 state29 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 regard for the lot of the employee.
In any event, from the wordings of the contractual provision and the policy in its employee
handbook, it is clear that Glaxo does not impose an absolute prohibition against
relationships between its employees and those of competitor companies. Its employees are
free to cultivate relationships with and marry persons of their own choosing. What the
company merely seeks to avoid is a conflict of interest between the employee and the
company that may arise out of such relationships. As succinctly explained by the appellate
court, thus:
The policy being questioned is not a policy against marriage. An employee of the
company remains free to marry anyone of his or her choosing. The policy is not
aimed at restricting a personal prerogative that belongs only to the individual.

However, an employees personal decision does not detract the employer 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 Tescon, 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 Tescon was constructively
dismissed when he was transferred from the Camarines Norte-Camarines Sur sales area to
the Butuan City-Surigao City-Agusan 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 Tescon 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 participation in the market war
characterized as it is by stiff competition among pharmaceutical 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 areas of responsibility, all in the same Bicol Region,
renders the conflict of interest not only possible, but actual, as learning by one
spouse of the others market strategies in the region would be inevitable.
[Managements] appreciation of a conflict of interest is therefore not merely
illusory and wanting in factual basis31
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 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 operational demands and requirements.
The ruling of the Court therein, quoted hereunder, also finds application in the instant
case:
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.
G.R. No. 164774

April 12, 2006

STAR PAPER vs. RONALDO D. SIMBOL, WILFREDA N. COMIA & LORNA E.

ESTRELLA,
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 company, whom he married on June 27, 1998. Prior to the marriage,
Ongsitco advised the couple that should they decide to get married, one of them should
resign pursuant to a company policy promulgated in 1995, 2 viz.:
1. New applicants will not be allowed to be hired if in case he/she has [a] relative,
up to [the] 3rd degree of relationship, already employed by the company.
2. In case of two of our employees (both singles [sic], one male and another
female) developed a friendly relationship during the course of their employment
and then decided to get married, one of them should resign to preserve the policy
stated above.3
Simbol resigned on June 20, 1998 pursuant to the company policy. 4
Comia was hired by the company on February 5, 1997. She met Howard Comia, a coemployee, whom she married on June 1, 2000. Ongsitco likewise reminded them that
pursuant to company policy, one must 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
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

Respondents offer a different version of their dismissal. Simbol and Comia allege that they
did not resign voluntarily; they were compelled to resign in view of an illegal company
policy. As to respondent Estrella, she alleges that she had a relationship with co-worker
Zuiga who misrepresented himself as a married but 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
accident and was advised by the doctor at the Orthopedic Hospital to recuperate for
twenty-one (21) days. 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 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 to explain. The management asked her to write an explanation. However, after
submission of the 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
Respondents later filed a complaint for unfair labor practice, constructive dismissal,
separation pay and attorneys fees. They averred that the aforementioned company policy
is illegal and contravenes Article 136 of the Labor Code. They also contended that they
were dismissed due to their union membership.
On May 31, 2001, Labor Arbiter Melquiades Sol del Rosario dismissed the complaint for
lack of merit, viz.:
[T]his company policy was decreed pursuant to what the respondent corporation perceived
as management prerogative. This management prerogative is quite broad and
encompassing for it covers hiring, work assignment, working method, time, place and
manner of work, tools to be used, processes to be followed, 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 employment.9 (Citations omitted.)
On appeal to the NLRC, the Commission affirmed the decision of the Labor Arbiter on
January 11, 2002. 10
Respondents filed a Motion for Reconsideration but was denied by the NLRC in a
Resolution11 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.:

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:
(1) Declaring illegal, the petitioners dismissal from employment and ordering
private respondents to reinstate petitioners to their former positions without loss of
seniority rights with full backwages from the time of their dismissal until actual
reinstatement; and
(2) Ordering private respondents to pay petitioners attorneys fees amounting to
10% of the award and the cost of this suit.13
On appeal to this Court, petitioners contend that the Court of Appeals erred in holding that:
1. x x x the subject 1995 policy/regulation is violative of the constitutional rights
towards marriage and the family of employees and of Article 136 of the Labor
Code; and
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:
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 the special laws on labor unions, collective
bargaining, strikes and lockouts, closed shop, wages, working conditions, hours of labor
and similar subjects.
Art. 1702. In case of doubt, all labor legislation and all labor contracts shall be construed in
favor of the 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.
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 coemployees. 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-thethird-degree-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 (antinepotism 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.
In challenging the anti-nepotism employment policies in the United States, complainants
utilize two 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 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 hiring
wives of male employees, but not husbands of female employees, is discriminatory on its
face.22
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.
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 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.

whether Estrella voluntarily resigned but ordered that she be reinstated along with Simbol
and Comia.

We do not find a reasonable business necessity in the case at bar.

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.

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.
Petitioners contend that their policy will apply only when one employee marries a coemployee, 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
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

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.
Given the lack of sufficient evidence on the part of petitioners that the resignation was
voluntary, Estrellas dismissal is declared illegal.
IN VIEW WHEREOF, the Decision of the Court of Appeals in CA-G.R. SP No. 73477 dated
August 3, 2004 is AFFIRMED. SO ORDERED.
G.R. No. 168081

October 17, 2008

ARMANDO G. YRASUEGUI, petitioners,

vs.
PHILIPPINE AIRLINES, INC., respondents.
DECISION
REYES, R.T., J.:
THIS case portrays the peculiar story of an international flight steward who was dismissed
because of his failure to adhere to the weight standards of the airline company.
He is now before this Court via a petition for review on certiorari claiming that he was
illegally dismissed. To buttress his stance, he argues that (1) his dismissal does not fall
under 282(e) of the Labor Code; (2) continuing adherence to the weight standards of the
company is not a bona fide occupational qualification; and (3) he was discriminated
against because other overweight employees were promoted instead of being disciplined.

After a 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.

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.

The Facts
Respectfully Yours,
Petitioner Armando G. Yrasuegui was a former international flight steward of Philippine
Airlines, 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 mandated by the Cabin and Crew Administration
Manual1 of PAL.
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 concerns. Apparently, petitioner failed to meet the companys weight standards,
prompting another leave without pay from March 5, 1985 to November 1985.
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.
On April 26, 1989, petitioner weighed 209 pounds, 43 pounds over his ideal weight. In line
with company policy, he was removed from flight duty effective May 6, 1989 to July 3,
1989. He was formally requested to trim down to his ideal weight and report for weight
checks on several dates. He was also told that he may avail of the services of the company
physician should he wish to do so. He was advised that his case will be evaluated on July 3,
1989.2
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 residence to check on the progress of his effort to lose weight. Petitioner weighed 217
pounds, gaining 2 pounds from his previous weight. After the visit, petitioner made a
commitment3 to reduce weight in a letter addressed to Cabin Crew Group Manager Augusto
Barrios. The letter, in full, reads:
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.

F/S Armando Yrasuegui4

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.
Petitioner failed to report for weight checks. Despite that, he was given one more month to
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
Again, petitioner failed to report for weight checks, although he was seen submitting his
passport for processing at the PAL Staff Service Division.
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, petitioner ignored the directive and did not report for weight checks. On June
26, 1990, petitioner was required to explain his refusal to undergo weight checks. 7
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.
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
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 members who are similarly situated."

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

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

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

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

His motion for reconsideration having been denied,12 petitioner filed a complaint for illegal
dismissal against PAL.
Labor Arbiter, NLRC and CA Dispositions
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 the job of petitioner.15 However, the weight standards need not be complied with
under pain of dismissal since his weight did not hamper the performance of his duties. 16
Assuming that it did, petitioner could be 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
Both parties appealed to the National Labor Relations Commission (NLRC). 19
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
On February 1, 2000, the Labor Arbiter denied21 the Motion to Quash Writ of Execution22 of
PAL.

On June 23, 2000, the NLRC rendered judgment24 in the following tenor:

According to the NLRC, "obesity, or the tendency to gain weight uncontrollably regardless
of the amount of food intake, is a disease in itself."26 As a consequence, there can be no
intentional defiance or serious misconduct by petitioner to the lawful order of PAL for him
to lose weight.27
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 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
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 reversed31 the NLRC:
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.
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 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 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
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 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
On May 10, 2005, the CA denied petitioners motion for reconsideration. 41 Elaborating on
its earlier ruling, the CA held that the weight standards of PAL are a bona fide occupational
qualification which, in case of violation, "justifies an employees separation from the
service."42
Issues
In this Rule 45 petition for review, the following issues are posed for resolution:
I.
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;
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";
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;
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)
Our Ruling
I. The obesity of petitioner is a ground for dismissal under Article 282(e)
Labor Code.

44

of the

A reading of the weight standards of PAL would lead to no other conclusion than that they
constitute a continuing qualification of an employee in order to keep the job. Tersely put,
an employee may be dismissed the moment he is unable to comply with his ideal weight
as prescribed by the weight standards. The dismissal of the employee would thus fall under
Article 282(e) of the Labor Code. As explained by the CA:
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 x45
Petitioner, though, advances a very interesting argument. He claims that obesity is a
"physical abnormality and/or illness."46 Relying on Nadura v. Benguet Consolidated, Inc.,47
he says his dismissal is illegal:
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 Naduras illness 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
The reliance on Nadura is off-tangent. The factual milieu in Nadura is substantially different
from the case at bar. First, Nadura was not decided under the Labor Code. The law applied
in that case was Republic Act (RA) No. 1787. Second, the issue of flight safety is absent in
Nadura, thus, the rationale 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 of PAL. He was not dismissed due to
illness. Fourth, the issue in Nadura is whether or not the dismissed employee is entitled to
separation pay and damages. Here, the issue centers on the propriety of the dismissal of
petitioner for his failure to meet the weight standards of PAL. Fifth, in Nadura, the
employee 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 selfdiscipline. Indeed, during the clarificatory hearing on December 8, 1992, petitioner himself
claimed that "[t]he issue is could I bring my weight down to ideal weight which is 172, then
the answer is yes. I can do it now."49
True, petitioner claims that reducing weight is costing him "a lot of expenses." 50 However,
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, Cook reapplied for a similar position. At that time, "she stood 52" tall and weighed over 320
pounds." Respondent claimed that the morbid obesity of plaintiff compromised her ability
to evacuate patients in case of emergency and it also put her at greater risk of serious
diseases.

Cook contended that the action of respondent amounted to discrimination on the basis of a
handicap. This was in direct violation of Section 504(a) of the Rehabilitation Act of 1973, 53
which incorporates the remedies contained in Title VI of the Civil Rights Act of 1964.
Respondent claimed, 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 of concomitant disability.
The appellate Court disagreed and held that morbid obesity is a disability under the
Rehabilitation Act and that respondent discriminated against Cook based on "perceived"
disability. The evidence included expert testimony that morbid obesity is a physiological
disorder. It involves a 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 systems. Notably, the Court stated
that "mutability is relevant only in determining the substantiality of the limitation flowing
from a given impairment," thus "mutability only precludes those conditions that an
individual can easily and quickly reverse by behavioral alteration."
Unlike Cook, however, petitioner is not morbidly obese. In the words of the District Court
for the 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.
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 282(a), (c), and (d)."54
II. The dismissal of petitioner can be predicated on the bona fide occupational qualification
defense.
Employment in particular jobs may not be limited to persons of a particular sex, religion, or
national 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 United States, there are a few federal and many
state job discrimination laws that contain an exception allowing an employer to engage in
an otherwise unlawful form of prohibited discrimination when the action is based on a
BFOQ necessary to the normal operation of a business or enterprise. 56

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
Both arguments must fail.
First, the Constitution,59 the Labor Code,60 and RA No. 727761 or the Magna Carta for
Disabled Persons62 contain provisions similar to BFOQ.
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 so-called "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 the job;64 (2) the employer must
establish that the standard is reasonably necessary 65 to the accomplishment of that workrelated 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
In short, the test of reasonableness of the company policy is used because it is parallel to
BFOQ.68 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 did not hesitate to pass upon the validity of a company policy which prohibits its
employees from marrying employees of a rival company. It was held that the company
policy is reasonable considering that its purpose is the protection of the interests of the
company against possible competitor infiltration on its trade secrets and procedures.
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 CA73 are one in holding that the
weight standards of PAL are reasonable. A common carrier, from the nature of its business
and for reasons of public policy, is bound to observe extraordinary diligence for the safety
of the passengers it transports.74 It is bound to carry its passengers safely as far as human
care and foresight can provide, using the utmost diligence of 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 logical to hold that the weight standards of PAL show its effort to comply with the
exacting obligations imposed upon it by law by virtue of being a common carrier.

The business of PAL is air transportation. As such, it has committed itself to safely
transport its passengers. In order to achieve this, it must necessarily rely on its employees,
most particularly the cabin flight deck crew who are on board the aircraft. The weight
standards of PAL should be viewed as imposing strict norms of discipline upon its
employees.
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 to inspire passenger confidence on their ability to care for the
passengers when something goes wrong. It is not farfetched to say that airline companies,
just like all common carriers, thrive due to public confidence on their safety records.
People, especially the riding public, expect no less than that airline companies transport
their passengers to their respective destinations safely and soundly. A lesser performance
is unacceptable.
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.
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 airlines 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 respondents airlines," must fail.
The rationale in Western Air Lines v. Criswell76 relied upon by petitioner cannot apply to his
case. What was involved there were two (2) airline pilots who were denied reassignment as
flight engineers upon reaching the age of 60, and a flight engineer who was forced to retire
at age 60. They sued the airline company, alleging that the age-60 retirement for flight
engineers violated the Age Discrimination in Employment Act of 1967. Age-based BFOQ
and being overweight are not the same. The case of overweight cabin attendants is
another matter. 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. 77 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.
Petitioner is also in estoppel. He does not dispute that the weight standards of PAL were
made known to him prior to his employment. He is presumed to know the weight limit that
he must maintain at all times.78 In fact, never did he question the authority of PAL when he
was repeatedly asked to trim down his weight. Bona fides exigit ut quod convenit fiat.
Good faith demands that what is agreed upon shall be done. Kung ang tao ay tapat
kanyang tutuparin ang napagkasunduan.
Too, the weight standards of PAL provide for separate weight limitations based on height
and body frame for both male and female cabin attendants. A progressive discipline is
imposed to allow non-compliant cabin attendants sufficient opportunity to meet the weight
standards. Thus, the clear-cut rules obviate any possibility for the commission of abuse or
arbitrary action on the part of PAL.
III. Petitioner failed to substantiate his claim that he was discriminated against
by PAL.
Petitioner next claims that PAL is using passenger safety as a convenient excuse to
discriminate against him.79 We are constrained, however, to hold otherwise. We agree with
the CA that "[t]he element 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 position that impliedly
admitted the cause of dismissal, including the reasonableness of the applicable standard
and the private respondents failure to comply."80 It is a basic rule in evidence that each
party must 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 supposed cabin attendants who are allegedly similarly
situated with him. Substantial proof must be shown as to how and why they are similarly
situated and the differential treatment petitioner got from PAL despite the similarity of his
situation with other employees.
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 discriminating treatment they got from PAL; and
other relevant data that could have adequately established a case of discriminatory

treatment by PAL. In the words of the CA, "PAL really had no substantial case of
discrimination to meet."82
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 in matters within their specific and specialized
jurisdiction.84 But the principle is not a hard and fast rule. It only applies if the findings of
facts are duly supported by substantial evidence. If it can be shown that administrative
bodies grossly misappreciated evidence of such nature so as to compel a conclusion to 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
Here, the Labor Arbiter and the NLRC inexplicably misappreciated evidence. We thus annul
their findings.
To make his claim more believable, petitioner invokes the equal protection clause
guaranty86 of the Constitution. However, in the absence of governmental interference, the
liberties guaranteed by the Constitution cannot be invoked. 87 Put differently, the Bill of
Rights is not meant to be invoked against acts of private individuals. 88 Indeed, the United
States Supreme Court, in interpreting the Fourteenth 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.
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
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.
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.

Contrary to the allegation of petitioner that PAL "did everything under the sun" to frustrate
his "immediate return to his previous position," 94 there is evidence that PAL opted to
physically reinstate him to a substantially equivalent position in accordance with the order
of the Labor Arbiter.95 In fact, petitioner duly received the return to work notice on February
23, 2001, as shown by his signature.96

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 for petitioner, this is
not an ironclad rule.

Petitioner cannot take refuge in the pronouncements of the Court in a case97 that "[t]he
unjustified refusal of the employer to reinstate the dismissed employee entitles him to
payment of his salaries effective from the time the employer failed to reinstate him despite
the issuance of a writ of execution"98 and ""even if the order of reinstatement of the Labor
Arbiter is reversed on appeal, it is 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 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.

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

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.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 from the language of Article 279 of the Labor Code that "[a]n employee who is

Here, We grant petitioner separation pay equivalent to one-half (1/2) months pay for every
year of service.104 It should include regular allowances which he might have been
receiving.105 We are not blind to the fact that he was not dismissed for any serious
misconduct or to any act which would reflect on his moral character. We also recognize
that his employment with PAL lasted for more or less a decade.
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.