Broidrick v. Lindsay

• Decision Date: 11 May 1976
• Citation: 39 N.Y.2d 641,385 N.Y.S.2d 265,350 N.E.2d 595
• Parties: , 350 N.E.2d 595, 14 Fair Empl.Prac.Cas. (BNA) 38, 12 Empl. Prac. Dec. P 11,171 In the Matter of Thomas J. BROIDRICK, Jr., et al., as Trustees of the New York Building and Construction Industry Board of Urban Affairs Fund, et al., Respondents, v. John V. LINDSAY, as Mayor of the City of New York, et al., Appellants.
• Court: New York Court of Appeals Court of Appeals

Page 265

385 N.Y.S.2d 265

39 N.Y.2d 641, 350 N.E.2d 595, 14

Fair Empl.Prac.Cas. (BNA) 38,

12 Empl. Prac. Dec. P 11,171

In the Matter of Thomas J. BROIDRICK, Jr., et al., as Trustees of the New York Building and Construction Industry Board of Urban Affairs Fund, et al., Respondents, v. John V. LINDSAY, as Mayor of the City of New York, et al., Appellants.

Court of Appeals of New York.

May 11, 1976.

W. Bernard Richland, Corp. Counsel (Beverly Gross, New York City and L. Kevin Sheridan, New York City, of counsel), for appellants.

Robert G. Benisch, Walter M. Colleran and Robert J. Fink, New York City, for respondents.

BREITEL, Chief Judge.

The issue is whether the New York City Deputy Mayor-City Administrator has the power to mandate by regulation affirmative action, in the form of meeting prescribed minority percentages of employment by constructi contractors with the city. The question arises on appeal from determinations adverse to defendant city in an article 78 proceeding converted into an action for a declaratory judgment. The city appeals.

The order of the Appellate Division should be affirmed. The Deputy Mayor's regulations mandating affirmative action were in excess of existing authorizing legislation. To be sure, there is a strong public policy, expressed in both State and local law, against minority discrimination. While the Mayor or the Deputy Mayor may be empowered to require compliance with these laws by construction contractors, no State or local law authorized the city executive to mandate an affirmative action program containing minority hiring percentages. Hence, the regulations, if they otherwise complied with constitutional limitations, were invalid as in excess of the power of the city executive.

On April 2, 1968, the then Mayor issued Executive Order No. 71, which prohibited construction contractors doing business with the city from discriminating in their hiring practices because of race, creed, color, or national origin. The order further provided that the awarding of city contracts would be conditioned upon a bidder submitting an affirmative action program to insure that employees and applicants would be treated without regard to their race, creed, color, or national origin. The term 'affirmative action' was not defined in the order. The Deputy Mayor was given the power to issue rules and regulations to implement the order.

Thereafter, representatives of the city, the State, the contractors, and the labor unions entered into discussions to formulate a uniform plan to meet the affirmative action requirements of the Mayor's executive order and a similar Governor's executive order. Agreement was eventually reached on a plan, known as the 'New York Plan', for on-the-job training of minority group members and their referral for training to appropriate unions. Its purpose and effect, if successful, were to increase the pool of persons eligible for employment by including theretofore excluded members of certain minorities. The plan became effective on December 10, 1970.

Dissatisfied with the effectiveness of the plan, on January 18, 1973, the Mayor withdrew the city from participation. On July 5, 1973, the Deputy Mayor officially promulgated 'Rules, Regulations and Orders of the Deputy Mayor-City Administrator', purportedly pursuant to Executive Order No. 71. Briefly, the regulations provide that, as a precondition to an award of a construction contract with the city, a contractor must agree to make 'good faith' efforts to provide specified 'percentages' of 'minority man-hours' of work on each of the contractor's projects with the city or with others throughout the term of the city contract involved. According to the regulation this is not to be interpreted as requiring the use of 'quotas' in hiring. The regulations further require the contractor to effect 'programs by (building trades) unions or organizations to advance trainees to journeyman status when they successfully complete their course of training, and programs to accept new minority apprentices at the rate of no less than one minority apprentice to every three non-minority apprentices.'

The purpose and effect of the new plan was to go beyond increasing the pool of persons eligible for employment in the building trades, and to assure by mandate the employment of members of minorities previously excluded by invidious discrimination. It is this added purpose and effect which raise the questions presented on this appeal.

Petitioners contend that neither the Mayor nor the Deputy Mayor have the power to promulgate the regulations and that the provision regarding apprentices is in conflict with State law on apprentice training.

Section 343--8.0 of the New York City Administrative Code prohibits discrimination in employment by those contracting with the city (Local Law No. 44 of City of N.Y., eff. Sept. 9, 1942). In pertinent part, the section provides: 'It shall be unlawful for any person engaged * * * in * * * construction * * * pursuant to a contract with the city * * * to refuse to employ or to refuse to continue in any employment any person on account of the race, color or creed of such person'.

Section 343--8.0 also prohibits an employer from soliciting information about the race, color or creed of an employee or applicant, and requires the wording of relevant parts of the local law to appear on all agreements entered into with the city. Violation of the section is punishable by fine or imprisonment.

Certainly, legislation prohibiting discrimination in employment, such as section 343--8.0 of the Administrative Code, requires executive enforcement (see Gaynor v. Rockefeller, 21 A.D.2d 92, 97, 248 N.Y.S.2d 792, 800, affd. 15 N.Y.2d 120, 256 N.Y.S.2d 584, 204 N.E.2d 627). Yet, executive action in enforcing such legislation may not go beyond stated legislative policy and prescribe a remedial device not embraced by the policy (see Matter of Small v. Moss, 279 N.Y. 288, 295--296, 18 N.E.2d 281, 283--284; Matter of Goelet v. Moss, 248 App.Div. 499, 500--501, 290 N.Y.S. 573, 574--575, affd. 273 N.Y. 503, 6 N.E.2d 425; Edenwald Contr. Co. v. City of New York, Sup., 384 N.Y.S.2d 338, NYLJ, March 1, 1974, p. 15, col. 6, affd. on opn. at Supreme Ct. 47 A.D.2d 610, 366 73 Misc.2d 111, 115--116, 341 N.Y.S.2d 73 Misc.id 111, 115--116, 341 N.Y.S.2d 473, 477, affd. 41 A.D.2d 1031, 344 N.Y.S.2d 633).

Consequently, within the bounds of the legislative policy to be executed, the executive is accorded flexibility in determining the proper methods of enforcement. Although not often given explicit recognition, the degree of flexibility varies according to the nature of the problem sought to be remedied by the legislation (see, e.g., Matter of Sullivan County Harness Racing Assn. v. Glasser, 30 N.Y.2d 269, 276--277, 332 N.Y.S.2d 622, 625--626, 283 N.E.2d 603, 606). Where it is impracticable for the legislative body to fix specific standards for enforcement without destroying the flexibility necessary to meet the variety of circumstances likely to be encountered in carrying out the legislative will, broad flexibility in determining the proper methods of enforcement will be sustained. The subtle nature of noxious discriminatory practices makes this area appropriate for a broad declaration of policy, leaving to the executive discretion to determine the particular otherwise valid means necessary to enforce antidiscriminatory prohibitions (see Ross v. Arbury, 206 Misc. 74, 78, 133 N.Y.S.2d 62, 66, affd. 285 App.Div. 886, 139 N.Y.S.2d 245).

But no matter how appropriate the area of racial discrimination is for flexible standards of enforcement, the regulations issued by the executive to implement antidiscriminatory legislation may not create a different policy, not embraced in the legislation, toward minority discrimination (see Ross v. Arbury, supra). Such executive action would constitute an impermissible exercise of legislative power vested by the New York City Charter in the city council (New York City Charter, ch. 2, § 21; see Matter of Natilson v. Hodson, 264 App.Div. 384, 386--387, 35 N.Y.S.2d 537, 539--540, affd. on other grounds 289 N.Y. 842, 47 N.E.2d 442).

In this instance, the Administrative Code makes it unlawful for those contracting with the city to refuse employment because of race (§ 343--8.0, subd. a). The code further prohibits a contractor from seeking information potentially useful to a would-be discriminator, such as the ethnic classification of job applicants (subd. b). The only expressed affirmative requirement in the city law is that all city contracts contain the provisions of subdivisions a and b of the local law. Nowhere in the law has the city council prescribed affirmative action to redress the effects of discrimination.

There is a dramatic distinction between the expressed legislative policy of prohibiting employment discrimination and the mayoral policy of mandating...