American Jewish Congress v. Carter

• Decision Date: 15 July 1959
• Parties: , 23 Misc.2d 446 Application of AMERICAN JEWISH CONGRESS, a membership corporation, Petitioner, for an Order Pursuant to Article 78 of the Civil Practice Act, v. Elmer A. CARTER, J. Edward Conway, John A. Davis and Mary Louise Nice, constituting the State Commission against Discrimination, and Arabian-American Oil Company, a Delaware corporation, Respondents.
• Court: New York Supreme Court

Page 218

190 N.Y.S.2d 218

19 Misc.2d 205, 23 Misc.2d 446

Application of AMERICAN JEWISH CONGRESS, a membership

corporation, Petitioner, for an Order Pursuant to

Article 78 of the Civil Practice Act, v. Elmer A. CARTER, J. Edward Conway, John A. Davis and Mary

Louise Nice, constituting the State Commission

against Discrimination, and

Arabian-American Oil Company,

a Delaware

corporation,

Respondents.

Supreme Court, Special Term, New York County, Part I.

July 15, 1959.

On Motion to Dismiss July 15, 1959.

T. Darrington Semple, Jr., and White & Case, New York City, for respondent Arabian-American Oil Co. (Chester Bordeau, New York City, of counsel).

Henry Spitz, Solomon J. Heifetz, Ann Thacher Clarke, New York City, for respondent State Commission against Discrimination.

Shad Polier, Will Maslow, Leo Pfeffer, New York City, for petitioner (Philip Baum, New York City, of counsel).

HENRY EPSTEIN, Justice.

This is an application for an order under article 78 of the Civil Practice Act to annul the determinations of November 10, 1958 and March 26, 1959, by Commissioner Elmer A. Carter of the State Commission against Discrimination and to direct said Commission to take appropriate action to credit the charges of the complaint in American Jewish Congress v. Arabian-American Oil Company (Case No.C--4296-56). Petitioner charged Arabian-American Oil Company ('Aramco') with violation of section 296, subdivision (1) (a) and (1) (c) of the Executive Law of New York State, known as the Law Against Discrimination. Petitioner is recognized by the Commission as coming within the reasonable scope of a 'person' authorized to register a complaint under section 296, subdivision (1) (c). Adhering to his prior determinations, respondent Carter on March 26, 1959 dismissed the petition of the American Jewish Congress relative to its charges of Aramco's violations of both spirit and letter of the State's anti-discrimination law. Respondent Commission voted to permit Aramco to inquire into the religion of job applicants as a 'bona fide occupational qualification' and further to authorize Aramco to have applicants for employment fill out a visa application for travel in Saudi Arabia containing an inquiry into the applicant's religion. Commissioner Caroline Simon, now Secretary of State of New York, dissented, stating forthrightly that 'our basic documents of freedom * * * are never to be subordinated to immediate business gain.' Her position was that there was no State Department policy which would dictate the subversion of this salutary New York State law to an internal policy of Saudi Arabia motivated by Arabhatred of Israel.

Under date of June 15, 1959, Assistant Secretary of State William B. Macomber wrote to United State Senator E. L. Bartlett of Alaska regarding this very issue:

'We assure you that the Department does not intend to inject itself in any way into the proceedings of a State court; at the same time, the Department does have an obligation, when requested to do so, to provide State authorities with information respecting the policies of other Governments and of our own in foreign lands.'

There is not the slightest doubt that nowhere in the history and origin of the statute under consideration is there the slightest authority for the determination by respondent that the religion of an applicant for employment is or can ever be regarded as a 'bona fide occupational qualification.' Any such holding would undermine the very foundation of our American concept of liberty and the constitutional safeguards of that liberty. The only cases where such inquiry is upheld are those where failure to permit such might interfere with the functioning of a religious organization (see remarks of Hon. Charles Tuttle in Hearings, pp. 349, 350, 670). Respondent Commission has refused to permit a help-wanted advertisement calling for a 'colored worker' on the asserted ground that color was a 'bona fide occupational qualification for a position as a social worker' (Report on Progress, 1948, p. 73). The only departure from that sound principle is the Aramco ruling by which this Commission of the State of New York flouts the principles of our Founding Fathers.

The record here under review reveals that the King of Saudi Arabia not only prohibits employment of Jews in Arabia, but also 'strenuously objects to the employment of Jews in any part of Aramco's operation.' Testimony of Field Representative Anderson. pp. 3-4. Aramco cannot by virtue of its contract even purchase electrical equipment from Philco, a domestic corporation, because of 'its Jewish management.' These are undisputed facts. This court does not pretend to assert that Saudi Arabia may not do as it pleases with regard to whom it will employ within the borders of Saudi Arabia. Nor does this court pretend to say that Aramco may not hire whom it pleases to conform to its Arabmaster's voice. What this court does say is that Aramco cannot defy the declared public policy of New York State and violate its statute within New York State, no matter what the King of Saudi Arabia says. New York State is not a province of Saudi Arabia, nor is the constitution and statute of New York State to be cast aside to protect the oil profits of Aramco. Nor will the fact, if it be such, that the employment is for possible service in Saudi Arabia permit the subversion of our State law aimed to preserve our democratic heritages. The Senate of the United States on July 26, 1959, adopted Senate Resolution 323, which reads in part:

'Whereas it is a primary principle of our Nation that there shall be no distinction among United States citizens based on their individual religious affiliations and since any attempt by foreign nations to create such distinction among our citizens in the granting of personal or commercial access or any other rights otherwise available to United States citizens generally is inconsistent with our principles; Now, therefore, be it

'Resolved, that it is the sense of the Senate that it regards any such distinctions directed against United States citizens as incompatible with the relations that should exist among friendly nations, and that in all negotiations between the United States and any foreign state every reasonable effort should be made to maintain this principle.'

That declaration of noble foreign policy remains today. The State Department has not sought to override the Senate of the United States and Aramco cannot pretend that the State Department has done so. Aramco's witness before this Commission (Mr. Barry) frankly admitted that Aramco's employees had to submit 'to this kind of interrogation with regard to their religion.' Aramco has divided its employees into five categories, the lowest of which encompasses those in positions of limited promotion opportunities and who cannot go to Saudi Arabia. It is a matter of record in these proceedings that out of some 887 employees on Aramco's New York payroll, few, if any, Jews are employed. If, as perhaps correctly claimed by Aramco, this must result from the necessity of possible employment in Saudi Arabia, the answer of New York State is simply--Go elsewhere to serve your Arab master--but not in New York State. Commissioner Carter admits that Aramco's policy 'would appear to be contrary to the provisions of the New York Law Against Discrimination and the rulings of the Commission.' However, he seeks an escape for Aramco in the 'bona fide occupational qualification' which the history of this statute reveals finds no possible application to a religious qualification for employment in Saudi Arabia. It is interesting to find that the Urban League of Greater New York and the National Association for the Advancement of Colored People are on record in this proceeding for the petitioner and against the decision of the respondent Commission.

If, as claimed by Aramco, a change in employment policy would obstruct American foreign policy in the Near East; or if the enforcement of the public policy of New York State would embarrass the State Department in the Near East, then it should be said that the honor of American citizenship, if it remains for New York State to uphold it, will survive Aramco's fall from Arab grace. It is the holding of this court that an administration ruling...