American Jewish Congress v. Carter
| Decision Date | 02 March 1961 |
| Citation | 213 N.Y.S.2d 60,9 N.Y.2d 223,173 N.E.2d 788 |
| Parties | , 173 N.E.2d 788, 47 L.R.R.M. (BNA) 2949, 1 Fair Empl.Prac.Cas. (BNA) 17, 1 Empl. Prac. Dec. P 9671, 42 Lab.Cas. P 50,174 In the Matter of AMERICAN JEWISH CONGRESS, Respondent, v. Elmer A. CARTER et al., Constituting the State Commission Against Discrimination, Respondents, and Arabian American Oil Company, Appellant. |
| Court | New York Court of Appeals Court of Appeals |
Chester Bordeau, George W. Ray, Jr., Lowell Wadmond and T. Darrington Semple, Jr., New York City, for appellant.
Shad Polier, Will Maslow, Leo Pfeffer and Joseph B. Robison, New York City, for respondent.
Jack Greenberg, Thurgood Marshall, and Norman C. Amaker, New York City, for NAACP Legal Defense and Educational Fund, Inc., amicus curiae.
The present proceeding before us was commenced in 1956. The principal issue presented is whether 'probable cause' existed 'for crediting the allegations of the complaint' (Executive Law, § 297). On the basis of the record before us, both courts below have held that 'probable cause' did exist here. Special Term went further and erroneously addressed itself to how the issues pertaining thereto might be ultimately resolved. The evidence supports the finding of probable cause, and the Appellate Division properly remanded the matter to the commission for proceedings in accordance with article 15 of the Executive Law.
Accordingly, two alternatives are now open to the commission under section 297, the paramount mandate here involved: (1) The investigating Commissioner 'shall immediately endeavor to eliminate the unlawful discriminatory practice complained of by conference, conciliation and persuasion'; or (2) he may refer the matter to the entire commission for a hearing.
The orders of the Appellate Division should be affirmed, without costs.
In 1950 the State Commission Against Discrimination granted to Aramco a bona fide occupational qualification permitting the making of inquiries as to religion of applicants whose employment required an entry visa to Saudi Arabia or passage through countries en route which restrict visas on religious grounds. Numerous attacks have been made by petitioner, the American Jewish Congress, upon the issuance of that certificate by the commission. A complaint made in 1956 was referred by the commission to one of its members, Elmer A. Carter, who after extensive investigation made a decision on behalf of the commission on November 10, 1958 dismissing the complaint and continuing the bona fide occupational qualification accorded to Aramco in 1950. Petitioner applied to the commission for reconsideration and, in a lengthy opinion by the then Chairman, Charles Abrams, the complaint was referred back to Commissioner Carter for reconsideration, who examined into matters which Chairman Abrams suggested might change the result, but on March 26, 1959, adhered to the original determination, stating:
The American Jewish Congress petitioned the Supreme Court to review each of these determinations by the Commission Against Discrimination. Special Term annulled the dismissal of the complaint by the commission and remitted the matter to the commission for further action in accordance with an opinion deciding the issue of discrimination on the merits in favor of the American Jewish Congress. The Appellate Division affirmed Special Term's order, holding that probable cause had been shown as a basis for the complaint against Aramco, and upholding the remission to the commission for further action. It modified the order of Special Term to the extent of eliminating the direction that the commission must decide the complaint in accordance with Special Term's opinion. That order of the Appellate Division is now on appeal to this court. The question before this court is, therefore, whether Commissioner Carter was correct in dismissing the complaint of the American Jewish Congress, whether the latter organization had capacity to institute the proceeding and, if so, whether probable cause has been shown as a basis for further proceedings by the commission against Aramco.
In his decision Commissioner Carter said: 'The primary objective of the present complaint is the abrogation of this resolution (of the commission in 1950) and the withdrawal of the bona fide qualification granted by the Commission.' The truth of that statement has been borne out by the argument made on this appeal in behalf of petitioner, which, although disavowing that...
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