Berni v. Leonard
| Decision Date | 28 April 1972 |
| Citation | 331 N.Y.S.2d 193,69 Misc.2d 935 |
| Parties | , 4 Fair Empl.Prac.Cas. (BNA) 769, 4 Empl. Prac. Dec. P 7812 Application of Diane BERNI et al., For an Order pursuant to Article 78 of the Civil Practice Law and Rules, Petitioners, v. Adele LEONARD, Executive Directrix of the Nassau County Civil Service Commission and the Nassau County Civil Service Commission, et al., Respondents. |
| Court | New York Supreme Court |
'Frailty, thy name is woman!' sayeth William Shakespeare in the sixteenth century (Hamlet, Act I, Scene ii). Not so, say five Nassau County policewomen who demand the opportunity to become police sergeants. Therein lies a modern tale of exclusion from employment classification.
The five policewomen each seek appointment to the position of police sergeant, and have applied to take the appropriate Civil Service examination.
Under the policies and rules of the County Civil Service Commission and Police Department, the women were found ineligible to take the police sergeant examination, since only those serving as patrolmen qualify for promotion to police sergeant. However, the women were informed they could take an examination for the position of 'policewoman sergeant'. Apparently, vacancies are available for two policewoman sergeants, and an undisclosed number of police sergeants.
The women claim that, in being barred from the police sergeant's examination, they are in reality being discriminated against on the basis of sex and seek in this class proceeding to enjoin the giving of the separate police sergeant and policewoman sergeant examinations on April 29, 1972. The County officials essentially defend that the job classifications are reasonably drawn with respect to required experience and ability to perform.
The opportunity to obtain employment without discrimination because of sex is a civil right. Executive Law, § 291. When a particular sex is a 'bona fide occupational qualification', as for instance a female dramatic role, employment lines can be drawn to include that sex alone. Executive Law, § 296(1)(d); see, Civil Service Law, § 50(7); 42 U.S.C. § 2000e--2(e). Otherwise, it is unlawful to refuse to hire or employ any individual purely because of sex. Executive Law, § 296; Title VII of the Civil Rights Act of 1964.
The Police Department is not legally shielded from the requirement of providing equal employment opportunity to, and recognizing the civil rights of, its members. See, Mize v. State Division of Human Rights, 38 A.D.2d 278, 328 N.Y.S.2d 983.
The question here is whether the requirement of being a police patrolman is a Bona fide occupational qualification for police sergeant. Traditional notions of femininity versus masculinity must be excluded. 29 CFR § 1604.1; New York State Division of Human Rights v. New York-Pennsylvania Professional Baseball League, 36 A.D.2d 364, 320 N.Y.S.2d 788, affd. 29 N.Y.2d 921, 329 N.Y.S.2d 99, 279 N.E.2d 856; Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 13 L.Ed.2d 616.
The County people first argue that police sergeants uniquely observe conditions at police posts, inspect departmental vehicles for serviceability and cleanliness and direct criminal investigations. However, since no proof whatever was introduced to show that policewomen cannot perform these punctions, these duties alone cannot justify the exclusion of women. Cf. Weeks v. Southern Bell Telephone & Telegraph Co., 408 F.2d 228 (5th Cir. 1969).
More to the point is the General Statement of Duties for the police sergeant class which specifies that a police sergeant:
'supervises the activities of patrolmen on an assigned shift within the command to which he is attached . . .'.
While the women claim that patrolmen and policewomen have identical duties, the specific job descriptions attached as exhibits to the officials' affidavits show otherwise. Patrolmen are assigned to significant duties which policewomen do not perform, including general police patrol functions such as fights, stickups, armed robberies, homicides, directing traffic, making arrests and preserving the public peace. Patrolmen have experience in performing these duties; policewomen do not. It is reasonable to provide that a sergeant charged with the duty of supervising patrolmen should have experience in the very operation he must supervise. None of the women have this experience, not unremarkably since those duties have been exclusively reserved for men. Apparently, the women have not formally complained about being excluded from performing the duties of patrolmen; yet, because of the missing job experience, they now lack an essential Bona fide job qualification for supervising patrolmen. The Court finds therefore that restricting the job of police sergeant to patrolmen does not violate the Executive or Civil Service Laws and is reasonable under the Fourteenth Amendment to...
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City of Schenectady v. State Division of Human Rights
... ... In Matter of Berni v. Leonard, 69 Misc.2d 935, 331 N.Y.S.2d 193, affd. 40 A.D.2d 701, 336 N.Y.S.2d 620, affd. 32 N.Y.2d 933, 347 N.Y.S.2d 198, 300 N.E.2d 731, cert ... ...
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