Berni v. Leonard

• Citation: 336 N.Y.S.2d 620,40 A.D.2d 701
• Parties: , 5 Fair Empl.Prac.Cas. (BNA) 463, 5 Empl. Prac. Dec. P 8019 In the Matter of Diane BERNI et al., Appellants, v. Adele LEONARD, Executive Directrix of the Nassau County Civil Service Commission, et al., Respondents. . Oct., 24, 1972. In a proceeding pursuant to article 78 of the CPLR to compel respondents to cancel two promotion examinations, one for the position of Police Sergeant and the other for that of Policewoman Sergeant, petitioners appeal from a judgment of the Supreme Court, Nassau County, 69 Misc.2d 935, 331 N.Y.S.2d 193, dated
• Decision Date: 28 March 1972
• Court: New York Supreme Court Appellate Division

Page 620

336 N.Y.S.2d 620

40 A.D.2d 701, 5 Fair Empl.Prac.Cas. (BNA) 463,

5 Empl. Prac. Dec. P 8019

In the Matter of Diane BERNI et al., Appellants, v. Adele LEONARD, Executive Directrix of the Nassau County

Civil Service Commission, et al., Respondents.

Supreme Court of New York, Appellate Division,

Second Department.

Oct., 24, 1972.

In a proceeding pursuant to article 78 of the CPLR to compel respondents to cancel two promotion examinations, one for the position of Police Sergeant and the other for that of Policewoman Sergeant, petitioners appeal from a judgment of the Supreme Court, Nassau County, 69 Misc.2d 935, 331 N.Y.S.2d 193, dated March 28, 1972, which denied the application. Judgment affirmed, without costs. No opinion.

MARTUSCELLO, Acting P.J., and GULOTTA, BRENNAN and BENJAMIN, JJ., concur.

SHAPIRO, J., dissents and votes to reverse and to grant the application, with the following memorandum:

Petitioners are employed as Policewomen in the respondent Nassau County Police Department. They seek admission to a promotion examination for police sergeant. One of the requisites for taking that examination is that the candidate shall have served as a policeman for four years immediately prior to the examination. It seems to be undenied that petitioners meet all other necessary qualifications except that, as policewomen, their reuired four years of service immediately prior to taking the examination were not as police patrolmen but as policewomen.

The announcement that the promotion examination for Police sergeant was to be given on April 29, 1972 was accompanied by an announcement of a second promotion examination, to be given on the same date, for Policewoman sergeant. The latter examination is described by the respondent Police Commissioner as 'identical' in content with that for police sergeant and as 'similar' by the Executive Director of the Nassau County Civil Service Commission. The salaries for both positions are identical. It appears, however, that there are only two openings for the position of policewoman sergeant, while an undisclosed (but apparently much larger) number of openings are available for police sergeant. Seven of the total of 28 policewomen in the Police Department have applied to take the policewoman sergeant examination, while 1,850 patrolmen out of an undisclosed total have filed for the police sergeant examination.

From 1968 to April 13, 1972 '268 Nassau County policemen have been promoted to the position of police sergeant and, of that number, 240 have been assigned to the patrol force' and in 1972, 65 policemen were promoted to sergeant, 63 of them being assigned to the patrol force. It thus seems crystal clear that in the future there will almost certainly be far more openings for police sergeants than for policewoman sergeants.

After setting forth at some length the differences between the duties assigned to police patrolmen as distinguished from policewomen, Police Commissioner Frank, in his answering affidavit (without discussing the more relevant issue of the differences, If any, between the duties assigned to police sergeants and policewoman sergeants), asserts:

'It is clear from the aforementioned differences in duties between police patrolmen and policewomen that separate lines of promotion must be established. To allow policewomen to be promoted to the position of police sergeant would create a chaotic situation within the Nassau County Police Department. Their training and experience as well as their physiological makeup would make it impossible for them to perform the general functions necessary to fill the regular position of police sergeant as supervisors of patrolmen.'

The affidavit of the Executive Director of the Nassau County Civil Service Commission makes no mention of resultant 'chaotic' situations within the Department. It stresses, instead, the fact that a policewoman sergeant's duties of supervision, instruction and assistance of policewomen includes supervision of what they do, investigations involving neglected, abused or delinquent children, and inspection of disorderly and suspicious premises which may be frequented by women and minors, whereas a police sergeant's duties, which she describes as 'far more general and encompassing', include 'assistance and instruction of patrolmen in the discharge of their duties, the observance of conditions at police posts, inspection of department vehicles and equipment assigned to patrolmen for serviceability, cleanliness and accuracy and the direction and performance of criminal investigations.' Possibly recognizing that the foregoing list of duties of a police sergeant includes no duty that a woman may not be able to do as well as or perhaps even better than a man, the Executive Director's affidavit then returns to a discussion of the differences between the duties of policewomen and policemen in terms of policewomen dealing primarily with women and children, not dealing with enforcement of the Vehicle and Traffic Law and not travelling in patrol cars, whereas the contrary is the case with patrolmen, and policewomen not having to pass as strenuous physical strength and agility tests as patrolmen to qualify for their respective positions. But there is no claim made that these requirements are required or necessary for filling the position and carrying out the duties of police sergeant as distinguished from that of policeman.

The typical duties of a police sergeant, set forth in an exhibit to the Executive Director's affidavit in support of respondents' answer, states that a police sergeant supervises the activities of patrolmen on an assigned shift within the command to which he is attached and performs related duties as required. It states also that, under supervision, he plans, directs and organizes the activities of the patrolmen under his control. Typical duties of the position are listed as assisting and instructing patrolmen in the discharge of their duties, visiting and inspecting posts to observe conditions and the manner in which patrol duty is performed, reviewing reports submitted by patrolmen, inspecting departmental vehicles and equipment assigned to patrolmen for serviceability, cleanliness and accuracy of speedometer readings, preparing daily reports of activities during his assigned shift and directing and performing criminal investigations as assigned. The qualifications listed are identical with those required for policewoman sergeant, except that there are added a requirement of knowledge of traffic control and an ability to transmit complex oral and written instructions by means of radio and teletype equipment. It seems obvious that such abilities are by no means limited to males or that they require the greater strength which is allegedly a characteristic of that sex.

With certain stated exceptions, the opportunity to obtain employment without discrimination because of sex is a civil right under section 291 of the Executive Law. Such discrimination may also be barred under section 703(a) of the Civil Rights Act of 1964 (U.S.Code, tit. 42, § 2000e--2(a)) and the requirements of that section apply to police departments (Mize v. State Div. of Human Rights, 38 A.D.2d 278, 328 N.Y.S.2d 983). The exception in the Executive Law (§ 296, subd. 1, par. (d)) and in the Civil Service Law (§ 50, subd. 7) permits discrimination where the sex or other characteristic is a bona fide occupational qualification for the position. Therefore the legality of respondents' position in barring petitioners from taking the examination for police sergeant depends on whether Respondents have demonstrated that the requirement of being a male and of having served for four years as a patrolman (rather than as a policewoman) is a bona fide occupational qualification for the position of police sergeant.

In determining what is a bona fide occupational qualifiction sufficient to permit the discrimination sanctioned by Title VII of the Civil Rights Act of 1964 the federal courts have consistently required that the exception be affirmatively established by the party asserting its applicability (Weeks v. Southern Bell Tel. & Tel. Co., 10 Cir., 408 F.2d 228; Bowe v. Colgate-Palmolive Co., 7 Cir., 416 F.2d 711; Cheatwood v. South Central Bell Tel. & Tel. Co., D.C., 303 F.Supp. 754). This view was adopted in New York State Div. of Human Rights v. New York-Pennsylvania Professional Baseball League, 36 A.D.2d 364, 320 N.Y.S.2d 788, in which the petitioners (a baseball league and others) unsuccessfully contended that the male sex is a 'bona fide occupational qualification' under section 296 (subd. 1, par. (d)) of the Executive Law and section 703 (subd. (e)) of the Civil Rights Act of 1964 ...