New York Law Review

Tag: Sex Discrimination

  • Kimmel v. State of New York, No. 36 (2017): Equal Access to Justice Act (EAJA) and Sex Discrimination Claims

    Kimmel v. State of New York, No. 36 (2017)

    The Equal Access to Justice Act (EAJA) allows for the award of attorney’s fees and costs to a prevailing plaintiff in an action against the State of New York under the Human Rights Law for sex discrimination in employment by a state agency.

    Summary

    Betty Kimmel, a former New York State Trooper, sued the State for sex discrimination, harassment, and retaliation, ultimately prevailing at trial and receiving a substantial jury award. Kimmel and her attorneys sought fees and costs under the Equal Access to Justice Act (EAJA). The trial court denied the motion, holding the EAJA inapplicable to actions seeking compensatory damages for tortious acts of the State. The Appellate Division reversed, and the Court of Appeals affirmed, finding that the EAJA, which provides for attorney’s fees in certain civil actions against the state, applied to Kimmel’s case. The Court relied on the plain language of the statute and its legislative history, which supported a broad interpretation of the term “any civil action,” rejecting the State’s argument that the term was limited to review of administrative actions.

    Facts

    Betty Kimmel, a New York State Trooper from 1980-1994, experienced sex discrimination, sexual harassment, and retaliation. Kimmel filed a complaint in 1995 against the State of New York and the New York State Division of State Police, alleging a hostile work environment and seeking damages, including attorney’s fees. The State defendants denied any wrongdoing and engaged in obstructionist tactics, leading the Appellate Division to strike their answers. After over a decade, Kimmel prevailed at trial and received a jury award exceeding $700,000. Kimmel and her attorneys then sought attorney’s fees under the EAJA.

    Procedural History

    Kimmel filed suit in 1995. The State defendants’ answers were struck due to their obstructionist tactics. Supreme Court held that the EAJA did not apply. The Appellate Division reversed this decision. The Court of Appeals heard the case on appeal from the Appellate Division order, and affirmed the Appellate Division’s decision.

    Issue(s)

    1. Whether the EAJA permits the award of attorney’s fees and costs to a prevailing plaintiff in an action against the State under the Human Rights Law for sex discrimination in employment by a state agency.

    Holding

    1. Yes, because the plain language of the EAJA defines “any civil action” broadly and there are no explicit limitations that would exclude Kimmel’s case, which was brought under the Human Rights Law and was not brought in the Court of Claims.

    Court’s Reasoning

    The Court of Appeals first looked at the plain language of the statute and found the EAJA applicable to “any civil action” against the state. The Court acknowledged that two limitations exist: that another statute does not specifically provide for counsel fees, and that an action was not brought in the Court of Claims. Since Kimmel’s case was brought in Supreme Court under the Human Rights Law, neither of these exceptions applied. The Court rejected the State’s argument that the term “judicial review” in the EAJA limited its scope to Article 78 proceedings or actions seeking review of a state agency’s administrative actions. The court determined that to accept the State’s interpretation would render the exclusion of actions in the Court of Claims meaningless. The Court also cited that the EAJA was intended to be comparable to the federal Equal Access to Justice Act, and is a remedial statute and therefore, should be construed broadly.

    The Court emphasized that “the word ‘any’ means ‘all’ or ‘every’ and imports no limitation” and further noted that the State’s interpretation would require adding an exception to the statute that was not clearly expressed.

    The concurring opinion agreed that the statutory language was ambiguous but concurred in the result. The concurrence emphasized a concession made by the State during oral arguments, where the State admitted that the EAJA could apply to a Human Rights Law action seeking injunctive relief against a State agency.

    The dissenting opinion maintained that the EAJA’s language, when read in context and with consideration to legislative history, limits its application to judicial review of agency actions and does not encompass actions seeking compensatory damages.

    Practical Implications

    This case clarifies that under the EAJA, attorney’s fees can be awarded in sex discrimination cases brought under the Human Rights Law, which can be brought in Supreme Court, against state agencies. The Court’s emphasis on the plain language of the statute and its legislative history highlights the importance of examining the specific statutory language. Attorneys should consider the possibility of obtaining attorney’s fees under the EAJA for clients who prevail in actions against the State, particularly in the absence of other fee-shifting provisions. Furthermore, the Court’s decision emphasizes the broad construction of remedial statutes. Lawyers and lower courts should be aware of the practical and fiscal consequences of this ruling and its impact on the state’s willingness to engage in litigation.

    Subsequent cases will likely apply this ruling to similar cases involving state agencies and discrimination, and could extend to other types of civil actions against the state that do not fall under the Court of Claims jurisdiction.

  • Elaine W. v. Joint Diseases N. Gen. Hosp., 81 N.Y.2d 211 (1993): Discriminatory Exclusion Based on Pregnancy

    Elaine W. v. Joint Diseases N. Gen. Hosp., 81 N.Y.2d 211 (1993)

    A hospital policy that categorically excludes pregnant women from a drug detoxification program constitutes facial sexual discrimination under the New York Human Rights Law unless the hospital can prove that the exclusion is medically warranted or that it cannot reasonably identify which pregnant women could be safely treated.

    Summary

    Elaine W. and other plaintiffs sued Joint Diseases North General Hospital, arguing its policy of excluding all pregnant women from its drug detoxification program was unlawful sex discrimination. The hospital defended the policy as a medical necessity, citing a lack of obstetrical resources. The New York Court of Appeals reversed the Appellate Division’s decision, holding that simply offering a medical explanation does not automatically validate the exclusionary policy. The hospital bears the burden of proving that its blanket exclusion of pregnant women is medically justified, either because no pregnant woman can be safely treated or because identifying treatable cases is medically impossible prior to admission.

    Facts

    Joint Diseases North General Hospital, a non-profit facility, operated a drug detoxification program with 50 beds. The hospital maintained a policy of excluding all pregnant women from the program. The hospital justified this policy by asserting it lacked the necessary equipment and staff (specifically, obstetricians) to safely treat pregnant women undergoing detoxification. The hospital also stated it was not licensed to provide obstetrical care and argued its policy was similar to excluding severely psychotic patients it was not equipped to handle. Plaintiffs, pregnant women denied admission to the detoxification program, challenged the policy as discriminatory.

    Procedural History

    The plaintiffs initially sued in trial court, which ruled against the hospital. The Appellate Division reversed, finding the hospital’s policy was a medical determination, not gender-based discrimination. The New York Court of Appeals granted leave to appeal and reversed the Appellate Division’s decision, remanding the case for further proceedings.

    Issue(s)

    1. Whether a hospital’s policy of excluding all pregnant women from its drug detoxification program constitutes unlawful sex discrimination under the New York Human Rights Law?

    2. Whether a medical justification, without further proof, is sufficient to validate a policy that facially discriminates based on pregnancy?

    Holding

    1. Yes, because a policy that singles out pregnant women for different treatment based solely on their pregnancy constitutes facial sex discrimination under the New York Human Rights Law.

    2. No, because the hospital must affirmatively prove that its blanket exclusion of pregnant women is medically warranted or that it cannot reasonably identify which pregnant women could be safely treated.

    Court’s Reasoning

    The court reasoned that distinctions based solely on a woman’s pregnant condition are inherently suspect and constitute sexual discrimination under the Human Rights Law. Quoting the statute, the court noted it is unlawful to “deny to such person any of the accommodations, advantages, facilities or privileges thereof” because of sex. However, the court acknowledged that the hospital’s policy could be justified if the hospital could establish that the blanket exclusion was medically warranted – i.e., no pregnant woman could be safely treated regardless of her condition – or that it could not reasonably determine, prior to admission, which women could be treated safely. The court emphasized that the burden of proof rests on the hospital to demonstrate the medical necessity of the policy, not merely its good intentions. Citing Los Angeles Dept. of Water & Power v. Manhart, 435 U.S. 702, 708, the court stated: “[e]ven a true generalization about the class is an insufficient reason for disqualifying an individual to whom the generalization does not apply.” The court held that if some pregnant addicts could be safely treated, then a blanket exclusion is unwarranted, and the hospital must assess each woman individually. However, the court clarified that if the hospital proves it is medically unsafe to treat pregnant women at its facility, the Human Rights Law does not compel it to do so.

  • Matter of Easton v. Con Edison, 68 N.Y.2d 66 (1986): Establishing Discrimination Through Circumstantial Evidence

    Matter of Easton v. Con Edison, 68 N.Y.2d 66 (1986)

    A finding of discrimination by the State Commissioner of Human Rights must be confirmed if supported by substantial evidence, which may include circumstantial evidence demonstrating that similarly situated individuals were treated differently based on race or sex.

    Summary

    Pamela Easton, a Black woman, alleged Con Edison discriminated against her based on race and sex by denying her promotions in favor of less-qualified white men. The Commissioner of Human Rights sustained her complaint. The New York Court of Appeals found substantial evidence supported the Commissioner’s determination. Con Edison’s inconsistent application of job qualifications, its failure to seriously consider Easton’s application, and its promotion of less-experienced white males constituted sufficient evidence of discrimination. The Court reinstated the Commissioner’s order, which included offering Easton a comparable managerial position with back pay and damages for mental anguish. The Court emphasized it could not substitute its judgement for that of the Commissioner if his decision was supported by substantial evidence.

    Facts

    Pamela Easton, a Black woman, worked in Con Edison’s calendaring unit since 1975. She consistently met high standards and aided the assistant supervisor. In 1978, Charles Gallagher, a white male, was assigned to the unit, trained by Easton, and quickly promoted. When Easton returned from maternity leave in 1982, she learned Gallagher had been promoted to assistant supervisor and then supervisor, without her being considered. After Gallagher’s promotion to supervisor, Con Edison advertised for an assistant supervisor. Easton, meeting the listed qualifications, applied, but Daniel Mercado, a white Hispanic, was selected after a pro forma interview of Easton.

    Procedural History

    Easton filed a complaint with the New York State Division of Human Rights. The Commissioner of Human Rights reversed the Administrative Law Judge’s decision, finding discrimination. Con Edison challenged the Commissioner’s order. The Appellate Division initially annulled the determination. The New York Court of Appeals reversed the Appellate Division, reinstating the Commissioner’s order.

    Issue(s)

    1. Whether the Commissioner’s finding of discrimination is supported by substantial evidence?

    2. Whether the complaint was timely filed?

    3. Whether the relief ordered by the Commissioner is sustainable?

    Holding

    1. Yes, because the record indicates that Easton, because of her race and sex, was never given more than perfunctory consideration for management level positions within the calendar unit while white male employees with less experience were considered and promoted.

    2. No, because Easton filed her complaint within one year of learning about Gallagher’s promotion to assistant supervisor.

    3. Yes, because the remedial provisions of the Division order are authorized by statute and supported by credible evidence in the record.

    Court’s Reasoning

    The Court found substantial evidence supported the Commissioner’s determination. It noted Easton’s delayed promotion compared to Gallagher’s rapid advancement, despite her training him. The Court highlighted that Easton was not seriously considered for the supervisory positions, while less-experienced white males were promoted. The Court rejected Con Edison’s argument that the successful candidates were more qualified, pointing out that the stated job qualifications were inconsistently applied. The court emphasized the importance of looking at the totality of the circumstances.

    The Court determined the complaint was timely because it was filed within one year of Easton learning about Gallagher’s promotion. The Court referenced precedents stating that the statute of limitations begins to run when the complainant learns of the discriminatory act.

    Regarding the relief granted, the Court emphasized the broad discretion granted to the Commissioner under the statute. The order requiring Con Edison to notify supervisory employees about nondiscrimination laws, offer Easton a comparable position with back pay, and pay compensatory damages was deemed appropriate. The court stated, “an award of back pay to a proven victim of discrimination ‘would seem to be a rather normal sanction to be imposed’”. The Court also found the $10,000 award for mental anguish was within the range of previously approved awards. The court explicitly stated that “the effects of the discrimination were, as the Commissioner notes, renewed every working day when complainant reported to white males petitioner had promoted over her.”

  • Binghamton GHS Employees Federal Credit Union v. State Division of Human Rights, 77 N.Y.2d 16 (1990): Pregnancy Discrimination as Sex Discrimination in Credit Terms

    Binghamton GHS Employees Federal Credit Union v. State Division of Human Rights, 77 N.Y.2d 16 (1990)

    Excluding disabilities caused by normal pregnancy from an optional credit disability insurance policy offered as part of a loan agreement constitutes unlawful sex discrimination in the terms of credit, violating the New York Human Rights Law.

    Summary

    Theresa Yadlosky obtained a car loan from Binghamton GHS Employees Federal Credit Union, electing an optional credit disability insurance policy that excluded coverage for disabilities due to normal pregnancy. After her claims for disability benefits related to two pregnancies were denied, she filed complaints with the State Division of Human Rights, alleging sex discrimination. The New York Court of Appeals held that the pregnancy exclusion constituted unlawful sex discrimination in the terms of credit, violating the Human Rights Law, even though the insurance was optional. The court reasoned that the insurance was inextricably intertwined with the loan agreement and offered as a term of credit.

    Facts

    Theresa Yadlosky obtained a car loan from Binghamton GHS Employees Federal Credit Union, using a combined application and promissory note. The application included an optional credit health and disability insurance policy. Yadlosky elected the insurance, and the premium was included in the loan principal. The insurance policy, administered by Richard J. Katz & Co., excluded coverage for disabilities caused by normal pregnancy. Yadlosky filed claims for disabilities resulting from two pregnancies, which were denied based on the pregnancy exclusion.

    Procedural History

    Yadlosky filed complaints with the State Division of Human Rights. The Administrative Law Judge ruled in her favor. The Commissioner of the Division of Human Rights affirmed, holding that the insurance policy was a term of credit and violated the Human Rights Law. Binghamton, Katz, and the New York State Insurance Department initiated an Article 78 proceeding to annul the Division’s determination. The Appellate Division initially granted the petition. The New York Court of Appeals reversed the Appellate Division’s order and reinstated the Division of Human Rights’ determination.

    Issue(s)

    Whether an auto loan agreement violates the Human Rights Law when it contains an option to purchase disability insurance for the duration of the loan that excludes coverage for disabilities caused by normal pregnancy.

    Holding

    Yes, because the disability insurance exclusion constitutes unlawful sex discrimination in the terms of credit, violating the Human Rights Law, even though the insurance was optional.

    Court’s Reasoning

    The court determined that the Division of Human Rights has jurisdiction over discrimination matters, including claims that the insurance option was a discriminatory term of credit under the Human Rights Law. The court cited previous holdings that singling out pregnancy for different treatment discriminates on the basis of sex. While the insurance was optional, the court found that it was a “term” of the credit included in the credit agreement. The court emphasized that the insurance was offered in the credit agreement, available with every installment loan, keyed to the loan’s duration, and only available as part of a credit transaction. The insurance premium was incorporated into the loan and the creditor profited from it. The court reasoned that a lender cannot offer a disability benefits policy, whether optional or not, that discriminates on the basis of sex. The court stated, “A lender may not, as a part of its regular loan procedures, offer a disability benefits policy, whether optional or not, that discriminates on the basis of sex (see, Executive Law § 296-a [1] [b]).” Therefore, because women could not obtain the same disability protection as men due to the pregnancy exclusion, the credit agreement violated the statutory proscription against discrimination.

  • Matter of Johnson v. Oneida County Sheriff’s Dept., 60 N.Y.2d 970 (1983): Bona Fide Occupational Qualification (BFOQ) Exception to Sex Discrimination

    Matter of Johnson v. Oneida County Sheriff’s Dept., 60 N.Y.2d 970 (1983)

    An employer asserting a bona fide occupational qualification (BFOQ) defense to a charge of sex discrimination must demonstrate that the qualification is reasonably necessary to the normal operation of the business and that there are no reasonable alternatives available.

    Summary

    Marie Johnson, a female Deputy Sheriff correction officer, was denied a promotion to sergeant in the male wing of the Oneida County jail. The Sheriff’s Department argued that being male was a bona fide occupational qualification (BFOQ) because of male inmate privacy concerns during cell inspections. The New York Court of Appeals held that the Sheriff’s Department failed to prove that sex was a BFOQ, as they did not demonstrate that no reasonable alternatives existed to protect inmate privacy while allowing female sergeants to supervise the male wing. The court emphasized the narrow scope of the BFOQ exception to anti-discrimination laws.

    Facts

    Marie Johnson was a qualified female Deputy Sheriff correction officer working in the female housing unit of the Oneida County jail.
    She passed the civil service promotional exam for correction officer sergeant and ranked higher than the male candidate who was ultimately promoted.
    Johnson was denied the promotion solely because the vacancy was in the male wing of the jail, and the Sheriff’s Department assigned only male sergeants to that wing.
    The Sheriff’s Department argued that assigning female sergeants to the male wing would violate the privacy rights of male inmates during cell inspections, as the cells contained open toilets and showers, and the inmates lacked sleepwear.

    Procedural History

    Johnson filed a complaint with the New York State Division of Human Rights, alleging unlawful sex discrimination.
    The Division of Human Rights found in favor of Johnson, concluding that the Sheriff’s Department failed to prove that sex was a BFOQ for the position.
    The Appellate Division reversed the Division’s determination.
    The New York Court of Appeals reversed the Appellate Division’s order, reinstating the Division of Human Rights’ finding of unlawful discrimination.

    Issue(s)

    Whether the Oneida County Sheriff’s Department proved that being male was a bona fide occupational qualification (BFOQ) for the position of correction officer sergeant in the male wing of the jail, justifying the denial of promotion to a qualified female candidate.

    Holding

    No, because the Sheriff’s Department failed to demonstrate that the sex-based qualification was reasonably necessary to the normal operation of the jail and that there were no reasonable alternatives available to protect the privacy interests of the male inmates.

    Court’s Reasoning

    The court applied Section 296 of the Human Rights Law, which prohibits sex discrimination in employment, and Section 300, which mandates liberal construction of the Human Rights Law to accomplish its purposes.
    The court acknowledged the BFOQ exception but emphasized its narrow scope, requiring the employer to prove that the sex-based qualification is reasonably necessary and not susceptible of reasonable alternatives. The court referenced Dothard v. Rawlinson, 433 U.S. 321 (1977), underscoring the “extremely narrow” nature of the BFOQ exception.
    The court found that the Sheriff’s Department failed to meet this burden because they did not demonstrate that alternatives, such as installing shower curtains or providing sleepwear to inmates, were infeasible or prohibited.
    The court highlighted that the Sheriff acknowledged existing procedures to protect inmate privacy during inspections by officers of the opposite sex, and he offered no reason why those interests could not be further accommodated. The court further suggested the possiblity of having male guards walk through the cellblocks during unannounced inspections, while a female sergeant maintained radio contact at the desk, as a reasonable alternative.
    The court distinguished Carey v. New York State Human Rights Appeal Bd., noting that in Carey, the determination of the Division of Human Rights was being confirmed, whereas, in this case, it was being challenged. The court also noted that Carey involved the special security needs of a correctional facility housing female inmates, which necessitated intrusive measures like body searches, not applicable in this case.
    The dissent argued that the Division’s determination was a reasonable conclusion based on the record and should not have been disturbed. The dissent further explained that the Sheriff’s Department failed to show a reasonable degree of necessity for its refusal to promote Ms. Johnson solely on the basis of her sex.

  • United States Power Squadrons v. State Human Rights Appeal Board, 59 N.Y.2d 401 (1983): Sex Discrimination in Public Accommodations

    United States Power Squadrons v. State Human Rights Appeal Board, 59 N.Y.2d 401 (1983)

    An organization offering public boating safety courses and extending membership to all males who pass the course is a place of public accommodation, and therefore cannot discriminate based on sex, regardless of its claim to be a private club.

    Summary

    The United States Power Squadrons (USPS), a boating safety organization, denied membership to women. The New York State Division of Human Rights found this to be unlawful sex discrimination, as USPS was a place of public accommodation and not a distinctly private club. The New York Court of Appeals affirmed, holding that USPS’s widespread public activities, including offering boating courses to the public, made it a place of public accommodation subject to anti-discrimination laws. The court emphasized that USPS’s membership practices were not genuinely selective, undermining its claim to be a private club.

    Facts

    Bertha Adler, Charlotte Arutt, and Leslie Mayer, all women interested in boating, applied for membership to the United States Power Squadrons (USPS) and its local squadrons. They met all membership criteria except one: USPS membership was limited to males. USPS is a non-profit, tax-exempt corporation dedicated to promoting boating safety and skill, with over 650 local squadrons across the U.S. Local squadrons offer free boating courses to the public, including women. The courses are advertised publicly, sometimes as part of local school programs, and usually taught in public school buildings. Passing the basic boating course was generally followed by an invitation to join USPS. Membership benefits included reduced insurance rates, boat show admissions, equipment discounts, and the right to fly the USPS flag.

    Procedural History

    The State Division of Human Rights found USPS guilty of unlawful discrimination. The Human Rights Appeal Board affirmed the Division’s determination. USPS then filed suit, seeking to reverse the Board’s orders. The Appellate Division confirmed the orders and dismissed USPS’s petitions. The New York Court of Appeals granted USPS leave to appeal.

    Issue(s)

    1. Whether the United States Power Squadrons is a “place of public accommodation, resort or amusement” within the meaning of New York’s Human Rights Law.
    2. Whether the United States Power Squadrons is a “distinctly private” club exempt from the Human Rights Law.
    3. Whether applying the Human Rights Law to the United States Power Squadrons violates the constitutional rights of association and privacy of its members.

    Holding

    1. Yes, because the United States Power Squadrons systematically offers services and accommodations to the public through its extensive boating education programs.
    2. No, because membership in the United States Power Squadrons is extended to nearly all males who pass the basic piloting course, indicating a lack of genuine exclusivity.
    3. No, because the state’s interest in preventing discrimination outweighs the organization’s asserted right to discriminate based on sex.

    Court’s Reasoning

    The court found that USPS met the definition of a “place of public accommodation” because it systematically offered services to the public, primarily through its boating safety courses. The court rejected USPS’s argument that it did not operate from a fixed “place,” noting that the statute included examples of accommodations that did not have a fixed location. “The place of the public accommodation need not be a fixed location, it is the place where petitioners do what they do.” The court also held that USPS was not a “distinctly private” club because its membership was not genuinely selective. “The essence of a private club is selectivity in its membership. It must have a ‘plan or purpose of exclusiveness’.” USPS extended membership to all males who passed the basic piloting course, demonstrating a lack of subjective membership criteria. Furthermore, USPS actively solicited public participation and did not limit its services to members only. The court emphasized USPS’s tax-exempt status as a non-profit educational organization and its relationships with government agencies as factors undermining its claim to be a private club. Finally, the court held that the application of the Human Rights Law to USPS did not violate the members’ constitutional rights of association and privacy. Quoting Norwood v. Harrison, “the constitution places no value on” private discrimination, and USPS was not entitled to affirmative protection to further its discriminatory practices. The court found that USPS’s public activities brought it within the reach of the statute, regardless of its nominal private status. The court noted that USPS’s attempts to change its policies after the complaints were filed were aimed at mimicking a private club model rather than facilitating female membership. The court concluded that without membership, women were denied the ability to participate fully in the governance of the squadrons and denied the “advantages, facilities and privileges” of a public accommodation (Executive Law, § 296, subd 2, par [a]).

  • New York City Commission on Human Rights v. Pace College, 47 N.Y.2d 704 (1979): Sufficiency of Evidence for Sex Discrimination in Faculty Tenure Decisions

    New York City Commission on Human Rights v. Pace College, 47 N.Y.2d 704 (1979)

    Statistical data alone is insufficient to prove a pattern of sex discrimination in academic tenure decisions; however, evidence that an employee was treated differently due to their gender, even if not overtly discriminatory, can support a finding of unlawful discrimination.

    Summary

    The New York City Commission on Human Rights appealed a decision overturning its finding that Pace College (now University) discriminated against women faculty, specifically Dr. Winsey, in promotion and tenure. The Court of Appeals modified the order, holding that while statistical data presented was insufficient to prove a widespread pattern of discrimination, there was sufficient evidence to support the Commission’s finding that Dr. Winsey was discriminated against due to her sex and assertive advocacy for her rights, which was viewed negatively because she was a woman.

    Facts

    Dr. Winsey, a faculty member at Pace College, filed a complaint alleging sex discrimination in promotion and tenure decisions. She held a doctorate in cultural anthropology and a master’s degree in speech and human relations. She was initially hired as an adjunct professor in 1966 and became a full-time associate professor in 1968 in the Social Science Department after failing to secure a position in the Speech Department. She was informed by the head of the Speech Department that he did not like women around him because he could not use “four-letter” words and that he could not pay her as much as a man because it would “demoralize” his department. Despite positive evaluations and a heavy workload, her attempts to be promoted to full professor were unsuccessful, and she was ultimately given a terminal contract.

    Procedural History

    The New York City Commission on Human Rights found Pace College guilty of sex discrimination. Special Term overturned the Commission’s determination. The Appellate Division affirmed the Special Term’s decision. The New York Court of Appeals granted leave to appeal.

    Issue(s)

    1. Whether the statistical evidence presented was sufficient to support the Commission’s finding of a pattern of discrimination against women faculty at Pace College.

    2. Whether there was sufficient evidence to support the Commission’s finding that Dr. Winsey was individually discriminated against because of her sex.

    Holding

    1. No, because the statistical data was superficially plausible but failed to account for historical reasons and a proper pool of eligible candidates.

    2. Yes, because there was sufficient evidence that Dr. Winsey was treated differently than a similarly situated man would have been, due to her gender and assertive advocacy for her promotion.

    Court’s Reasoning

    The Court held that while statistics are helpful in determining discriminatory employment practices, a statistical predicate alone is not enough, especially when historical reasons exist for statistical bias. The Court emphasized the fallacy of drawing employment ratios from a large group without limiting it to those eligible for hiring or appointment. The Court noted the Commission failed to adequately define the pool of eligible candidates for comparison.

    However, regarding Dr. Winsey’s individual complaint, the Court found sufficient evidence to support the Commission’s finding of discrimination. Explicitly discriminatory comments made to and about her, coupled with her termination after she pursued promotion, suggested that she was treated differently due to her sex. The court reasoned that Pace’s justification that Dr. Winsey was a “troublemaker” was pretextual. The Court stated, “What Dr. Winsey did to cause her termination would not have been considered ‘troublesome’ if she had not been a woman.”

    The Court emphasized that those who discriminate unlawfully rarely do so openly, instead resorting to subtle tactics and mixed motives. In this case, the evidence of Dr. Winsey’s non-promotion had this character, and the commission was entitled to weigh the evidence and draw permissible inferences.

    The Court quoted Judge Fuld in Matter of Holland v Edwards, “those who discriminate unlawfully are not likely to do so in open, plainly-appearing fashion… Instead, there is likely to be covert resort to subtle tactics and the pretext of intermingled motives and reasons to obscure the substantial cause.”

  • National Organization for Women v. Gannett Co., 40 N.Y.2d 406 (1976): Aiding and Abetting Sex Discrimination Through Classified Ads

    National Organization for Women v. Gannett Co., 40 N.Y.2d 406 (1976)

    A newspaper that publishes classified advertisements under separate “Male” and “Female” headings aids and abets sex discrimination, violating state human rights laws.

    Summary

    The National Organization for Women (NOW) sued Gannett, a newspaper publisher, alleging that maintaining separate “Male” and “Female” columns in classified advertising violated New York’s anti-discrimination laws. The New York Court of Appeals held that Gannett aided and abetted sex discrimination by publishing these separate listings, reinforcing discriminatory practices even though the newspaper itself wasn’t directly discriminating nor was it an “employer” or “employment agency”. The court emphasized that such practices perpetuate wage disparities and limit opportunities based on gender stereotypes.

    Facts

    Gannett Publishing Co., Inc. published a newspaper with classified advertisement sections. These sections included separate columns labeled “Help Wanted – Male” and “Help Wanted – Female.” NOW filed a complaint alleging this practice violated New York State’s anti-discrimination laws, arguing it aided and abetted sex discrimination.

    Procedural History

    The State Division of Human Rights initially determined the separate listings were discriminatory, but this was overruled by the Division itself, dismissing the complaint. The State Human Rights Appeal Board upheld the dismissal. The Appellate Division confirmed the Division’s determination. The New York Court of Appeals granted permission for further appeal.

    Issue(s)

    1. Whether NOW has standing to bring suit as a representative organization.

    2. Whether a newspaper aids and abets sex discrimination by publishing classified advertisements under separate “Male” and “Female” headings, in violation of Executive Law § 296(6).

    Holding

    1. Yes, NOW has standing because it is a bona fide organization dedicated to eliminating discriminatory practices against women.

    2. Yes, Gannett aided and abetted sex discrimination because designating separate want ad column listings as “Help Wanted – Male” and/or “Help Wanted – Female” reinforces discriminatory practices.

    Court’s Reasoning

    The Court of Appeals reasoned that unlawful discrimination against women is widespread and often subtle. Although Gannett argued the separate listings were for the convenience of readers, the court found that such a practice perpetuates sex discrimination. The court highlighted that jobs listed in the “female” column often have lower pay than those in the “male” column, reinforcing wage disparities. The court cited Pittsburgh Press Co. v. Human Relations Comm., noting similar findings of wage disparities between male and female job listings. Although Gannett was not directly discriminating as an employer or employment agency, it was culpable for aiding and abetting discrimination under Executive Law § 296(6). The court stated, “We hold only that to designate separate want ad column listings as ‘Help Wanted – Male’ and/or ‘Help Wanted – Female’ reinforces the very discriminatory practices which the Federal and State antidiscrimination laws were meant to eliminate.” The court emphasized that the separate listings reinforce discriminatory practices that the law seeks to eliminate and rejected the argument that such listings are merely for reader convenience, stating that such policies can become self-fulfilling prophecies that perpetuate gender stereotypes in employment opportunities.

  • Sontag v. Bronstein, 33 N.Y.2d 197 (1973): Scrutiny of Employment Standards with Disparate Impact

    Sontag v. Bronstein, 33 N.Y.2d 197 (1973)

    A facially neutral employment standard that disproportionately affects a protected class requires an employer to demonstrate the standard’s rational relationship to job performance.

    Summary

    Marilyn Sontag challenged a physical test for an audiovisual aid technician position after failing the dumbbell lift portion, which all male candidates passed. She argued the test was not related to job duties and discriminated based on sex. The New York Court of Appeals reversed the lower courts’ dismissal, holding that when a hiring standard disproportionately affects a protected class, the employer must show the standard’s rational relationship to job performance. The court remanded the case for a hearing to determine the connection between the dumbbell lift and the actual duties of an audiovisual aid technician.

    Facts

    Marilyn Sontag received a provisional civil service appointment as an audiovisual aid technician at Hunter College. She passed the written civil service exam but failed the physical test, specifically the dumbbell lift subtest. This test required lifting a 25-pound dumbbell with one hand and a 20-pound dumbbell with the other. All male candidates passed the dumbbell lift. Sontag was subsequently released from her position, and a male candidate was hired to fill the vacancy.

    Procedural History

    Sontag filed an Article 78 proceeding challenging the dumbbell lift subtest, arguing it was unconstitutional. Special Term denied the application. The Appellate Division affirmed. Sontag appealed to the New York Court of Appeals.

    Issue(s)

    Whether the dumbbell lift subtest bears a rational relationship to the performance of the duties of an audiovisual aid technician, and whether it discriminates invidiously on the basis of sex, violating section 296 of the Executive Law, title VII of the Civil Rights Act of 1964, and the equal protection clause of the Fourteenth Amendment.

    Holding

    No, the lower court erred in dismissing the petition without a hearing, because the record was insufficient to determine whether the dumbbell lift subtest had a rational relationship to the job requirements and whether it disproportionately impacted female applicants.

    Court’s Reasoning

    The court emphasized that while employers have wide discretion in setting hiring standards, standards that disproportionately affect protected classes warrant judicial scrutiny. The court cited Section 296 of the Executive Law, which prohibits discrimination in employment based on sex. The court reasoned that when a facially neutral hiring standard adversely affects equal employment opportunity for a protected class, the employer must demonstrate that the standard bears a rational relationship to and is a valid predictor of employee job performance. The employer must also show that the standard does not create an arbitrary barrier to employment that discriminates on the basis of an impermissible classification.

    The court found the record deficient regarding the relationship between the duties of an audiovisual aid technician and the handling of heavy objects. While a field audit report mentioned lifting projectors weighing approximately 25 pounds, the record lacked specifics on how heavy equipment was handled. The court noted a factual dispute regarding the weight of typical projection equipment, with estimates varying between 25 and 40 pounds. Because of these uncertainties, the Court of Appeals determined a hearing was necessary to resolve these factual disputes. The court stated, “Adjudication of petitioner’s claim that the dumbbell lift subtest lacks such a rational relationship and, thus, discriminates invidiously on the basis of sex, turns on the relationship, if any, between the duties of the audio-visual aid technician and the handling, moving, carrying, etc., of heavy objects.”

    The court also noted the importance of evidence on whether the dumbbell lift subtest adversely affects equal employment opportunity for women as a class, and cited statistics from similar cases, such as State Div. of Human Rights v. New York City Dept. of Parks & Recreation, and Griggs v. Duke Power Co., where statistics were used to establish that certain requirements disproportionately affected protected classes. The court emphasized that although the record revealed that all men passed the test and both women failed, there was no other evidence, physiological, statistical, or otherwise, bearing on the ability of women, as a class, to perform the required lift.

  • City of Buffalo v. Mildred Mangan, 35 N.Y.2d 308 (1974): Discretion in Back Pay Awards for Discrimination

    City of Buffalo v. Mildred Mangan, 35 N.Y.2d 308 (1974)

    When a finding of unlawful discrimination is made, the decision to award back pay is within the discretion of the Commissioner of Human Rights, and that decision will not be overturned unless it is arbitrary, capricious, or an abuse of discretion.

    Summary

    This case addresses the scope of appellate review over an award of back pay by the Commissioner of Human Rights in a discrimination case. Police matrons filed complaints alleging sex discrimination by the Buffalo Police Department. The Commissioner found discrimination and ordered back pay. The Appellate Division reversed on the back pay issue, reasoning that the wage disparity was due to the overqualification of male turnkeys, not underpayment of the matrons. The New York Court of Appeals held that the Appellate Division erred; the Commissioner’s decision to award back pay was not arbitrary or capricious, even if a denial of back pay would have been equally reasonable. The Court emphasized that awarding back pay is a normal sanction for unlawful discrimination, supporting its decision with federal case law.

    Facts

    Police matrons employed by the Buffalo Police Department filed formal complaints with the Division of Human Rights, alleging that the department discriminated against them based on sex.
    Following a hearing, the Commissioner of Human Rights found that the Police Department had engaged in unlawful discriminatory practices.
    As part of the remedy, the Commissioner ordered the City of Buffalo to pay the matrons back pay to compensate them for the discriminatory wage differential.

    Procedural History

    The Commissioner of Human Rights found discrimination and ordered back pay.
    The Division of Human Rights Appeal Board reversed the Commissioner’s order regarding discrimination, rendering the back pay issue moot.
    The Appellate Division reversed the Appeal Board and reinstated the Commissioner’s finding of discrimination but reversed on the back pay award.
    The New York Court of Appeals initially affirmed the discrimination finding but dismissed the matrons’ cross-appeal regarding back pay due to lack of aggrievement.
    The Court of Appeals then granted permission for the matrons to appeal the back pay issue.

    Issue(s)

    Whether the Appellate Division was justified in setting aside the Commissioner’s determination to award back pay to the police matrons, based on a finding of unlawful sex discrimination by the Buffalo Police Department.

    Holding

    Yes, because the Commissioner’s decision to award back pay was not arbitrary, capricious, or an abuse of discretion, and therefore the Appellate Division erred in setting it aside. The Commissioner’s choice to award back pay, in the face of competing considerations, cannot be overturned simply because the opposite decision would have been equally reasonable and sustainable.

    Court’s Reasoning

    The Court focused on the limited scope of appellate review over the Commissioner’s determination. The statute provides the Commissioner with discretion to award back pay when unlawful discrimination is found. The question for the appellate court is not whether back pay should have been awarded de novo, but whether the Commissioner’s decision was so unreasonable as to be an abuse of discretion.
    The Court noted that “the normal remedy for a compensation differential made unlawful because based on illegal discrimination would more or less automatically be to grant the injured employees back pay as well as prospectively to order elimination of the discrimination.”
    The Court rejected the Appellate Division’s rationale that the wage disparity was due to the overqualification of male turnkeys rather than the underpayment of the matrons. Even if that argument was persuasive, it was for the Commissioner to weigh in the first instance. The Commissioner’s decision to award back pay was within the bounds of his discretion.
    The Court drew support from federal case law interpreting the Civil Rights Act of 1964 and the Equal Pay Act of 1963, which favors awarding back pay to remedy unlawful employment discrimination. Cases cited include Cooper v. Phillip Morris, Inc. and Robinson v. Lorillard Corp.
    The Court also noted that the scope of review available to the Division of Human Rights Appeal Board is limited to whether the Commissioner’s decision was “arbitrary, capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion”. The scope of review at the Appellate Division level is no broader. The court implied a standard of review similar to an Article 78 proceeding.
    The court stated, “In the face of competing considerations, the commissioner chose to award back pay. We do not see how that determination can now be set aside as erroneous as a matter of law; certainly not merely because the opposite decision would have been reasonable and also sustainable.”