Board of Ed. of Union Free School Dist. No. 2, East Williston, Town of North Hempstead, Nassau County v. New York State Division of Human Rights

• Decision Date: 25 June 1973
• Citation: 42 A.D.2d 49,345 N.Y.S.2d 93
• Parties: , 6 Fair Empl.Prac.Cas. (BNA) 349, 6 Empl. Prac. Dec. P 8713 BOARD OF EDUCATION OF UNION FREE SCHOOL DISTRICT NO. 2, EAST WILLISTON, TOWN OF NORTH HEMPSTEAD, COUNTY OF NASSAU, Petitioner, v. NEW YORK STATE DIVISION OF HUMAN RIGHTS et al., Respondents. (Susan Arluck, complainant) BOARD OF EDUCATION OF UNION FREE SCHOOL DISTRICT NO. 2, EAST WILLISTON, TOWN OF NORTH HEMPSTEAD, COUNTY OF NASSAU, Petitioner, v. NEW YORK STATE DIVISION OF HUMAN RIGHTS et al., Respondents. (Rachel Curto, complainant)
• Court: New York Supreme Court — Appellate Division

Page 93

345 N.Y.S.2d 93

42 A.D.2d 49, 6 Fair Empl.Prac.Cas. (BNA) 349,

6 Empl. Prac. Dec. P 8713

BOARD OF EDUCATION OF UNION FREE SCHOOL DISTRICT NO. 2, EAST

WILLISTON, TOWN OF NORTH HEMPSTEAD, COUNTY OF

NASSAU, Petitioner, v. NEW YORK STATE DIVISION OF HUMAN RIGHTS et al., Respondents.

(Susan Arluck, complainant)

BOARD OF EDUCATION OF UNION FREE SCHOOL DISTRICT NO. 2, EAST

WILLISTON, TOWN OF NORTH HEMPSTEAD, COUNTY OF

NASSAU, Petitioner, v. NEW YORK STATE DIVISION OF HUMAN RIGHTS et al., Respondents.

(Rachel Curto, complainant)

Supreme Court, Appellate Division, Second Department.

June 25, 1973.

Faruolo, Caputi & Weintraub, Huntington (Frank J. Faruolo, Jr. of counsel), for petitioner.

Henry Spitz, New York City (Joan Offner, Adele Graham and Ann Thacher Anderson, New York City, of counsel), for respondent.

HOPKINS, Acting Presiding Justice.

Since both of these proceedings raise similar issues, they are considered together. The predominant question is whether a pregnant teacher may be compelled by rule of a board of education to take an unpaid leave of absence not later than five months prior to her delivery, regardless of her physical ability to perform her duties and her desire to continue teaching. The Commissioner of the State Division of Human Rights in each case held that such a practice was discriminatory and in each his holding was affirmed by an order of the State Human Rights Appeal Board. We confirm the order in each proceeding and grant the cross-application in each proceeding to enforce the pertinent order in such proceeding.

The facts in each proceeding differ slightly. In the first proceeding, the complainant Susan Arluck had been employed by the petitioner as a social studies and English teacher from September, 1968. In October and November, 1970 she informed the petitioner that she was pregnant; and she asked that her maternity leave begin March 12, 1971. She was instructed instead by the Superintendent of the school district that her leave would begin on January 22, 1971 under the petitioner's policy.

In the second proceeding, the complainant Rachel Curto had been employed by the petitioner as a physical education teacher from September, 1967. She informed the petitioner in October, 1970 that she was pregnant and asked that her maternity leave begin January 1, 1971. She was instructed instead by the Superintendent of the school district that her leave would begin on November 1, 1970 under the policy adopted by the petitioner.

The petitioner's policy in brief required a pregnant teacher to leave her duties without pay not later than five months prior to the time of the anticipated birth. ¹ At the administrative hearings and in these proceedings, the petitioner defended the policy as justified by its rightful concern to avoid administrative problems arising out of the difficulty of recruiting competent teachers during the school year; moreover, it urges that under law, it has the power and duty 'to adopt rules and regulations governing the excusing of absences of all teachers and other employees and for the granting of leaves of absence to such employees either with or without pay' (Education Law, § 1709, subd. 16). The rule providing for maternity leaves, it asserts, is reasonable and applies uniformly to all pregnant teachers, thus avoiding both the appearance and effect of discrimination.

Our first base of review is therefore whether the Human Rights Law (Executive Law, art. 15) applies to the rules adopted by public school authorities. Neither the wide statement of the purposes of the Human Rights Law (Executive Law, § 290), nor the definition of terms used (Executive Law, § 292), nor the provision of our Constitution which it fulfills (N.Y.Const., art. I, § 11) indicates an intent to exclude public employers from the sanctions directed toward discriminatory practices under the act. But beyond this inference of the intendment of full power vested in the Commissioner of the State Division of Human Rights over the elimination of discrimination in public schools is the judicial construction of the existence of such power (Matter of Board of Higher Educ. of City of N.Y. v. Carter, 14 N.Y.2d 138, 250 N.Y.S.2d 33, 199 N.E.2d 141; Matter of Board of Educ. of Syracuse City School Dist. v. State Div. of Human Rights, 38 A.D.2d 245, 328 N.Y.S.2d 732; cf. Board of Educ. of Tuxedo Union Free School Dist. No. 3 v. Div. of Human Rights, 68 Misc.2d 1035, 330 N.Y.S.2d 274). ²

Having thus decided that the complainants were entitled to carry their grievances to the State Division of Human Rights, we next turn to the issue whether they suffered discrimination as a result of the policy which the petitioner enforced in granting them maternity leaves. The petitioner argues that as the policy applies solely to women, and all as a class are treated similarly, the policy represents a proper exercise of power. True it is that under the equal protection clause of the Fourteenth Amendment to the Federal Constitution distinctions based on rational grounds may be drawn between classes of individuals. The distinctions made "must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike" (Reed v. Reed, 404 U.S. 71, 76, 92 S.Ct. 251, 253, 30 L.Ed.2d 225). ³

But the test to be applied here is not the constitutional standard under the equal protection clause, but the statutory standard of the Human Rights Law. The Human Rights Law is undoubtedly a function of the equal protection guaranty, but it reflects a more direct and positive focus. Thus, it discourages by the use of sanctions a practice of employers 'because of the * * * sex of any individual * * * to discriminate against such individual in compensation or in terms, conditions or privileges of employment' (Executive Law, § 296, subd. 1, par. (a)). Though in a sense the equal protection clause deals with classes, the Human Rights Law in contrast deals with individuals. The statute in essence prevents disparate treatment of individuals, having regard for their abilities, capacities and qualifications (cf. 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, affd. 29 N.Y.2d 921, 329 N.Y.S.2d 99, 279 N.E.2d 856; Weeks v. Southern Bell Tel. & Tel. Co., 5 Cir., 408 F.2d 228). Gender as a source of such differentiation is neutralized and the statute imposes the burden of warranting the exceptional treatment of the individual on the employer (State Div. of Human Rights v. New York City Dept. of Parks & Recreation, 38 A.D.2d 25, 28, 326 N.Y.S.2d 640, 642).

The true issue before us then is whether the petitioner's policy has a reasonable foundation in requiring a teacher to absent herself after four months' pregnancy, though the teacher has both the desire and ability to continue. The petitioner on this record supports the policy by claiming that the overriding need of securing the continuity of competent instruction, without distracting the students in the middle of the school year by the introduction of a substitute, compels the rigidity of the schedule; this consideration is linked with its claim that the policy allows for a less burdensome administration of the teaching staff, free from the necessity to recruit replacements at inconvenient times during the school year. Under analysis, however, the policy does not achieve the result which is said to be its objective. An arbitrary leave required at the end of the fourth month of pregnancy is no more calculated to facilitate a planned and orderly transition between teacher and her substitute than any other date closer to confinement. The biological phenomenon of conception and pregnancy is not limited to any particular period in the school year. The petitioner's policy does not assist, therefore, in reaching the point of its promulgation in demanding an involuntary leave at four months, any more than it would by demanding absence at six or eight months.

The policy does present a manifest infirmity by singling out pregnancy among all other physical conditions to which a teacher might be subject as a category for special treatment in determining when leave from duty shall begin. In the case of other conditions such as ailments or the onset of disease, a leave of absence is not required by the petitioner to commence until medical necessity is demonstrated or the teacher voluntarily requests it. Hence, the female teacher is placed under a restriction dependent on sex alone by the terms of the petitioner's policy.

In short, we find that the respondents' determinations that the policy was discriminatory is justified on this record. In confirming the respondents' action, we recognize that the Commissioner of Education has held that a school board may prescribe the duration of maternity leave (see Matter of Kabatt, 52 State Dept.Rep. 59 (sustained in Kabatt v. Board of Educ. of City of Elmira, 246 App.Div. 886, 284 N.Y.S. 845, app. dsmd. 271 N.Y. 629, 3 N.E.2d 456, cert. den. 300 U.S. 657, 57 S.Ct. 433, 81 L.Ed. 867); cf. Matter of Amster v. Board of Educ. of Union Free School Dist. No. 22 Farmingdale, 55 Misc.2d 961, 286 N.Y.S.2d 687). It need only be pointed out that none of the cited cases involved a review of a determination of an administrative body having sole jurisdiction of discriminatory practices and that the issue with which they were concerned was the length of a maternity leave, not the time of commencement. We recognize too that there is a diversity of view in the federal courts--some striking down rules similar to the petitioner's policy (e.g., Green v. Waterford Bd. of Educ., 473 F.2d 629 (2nd cir., 1973), N.Y.L.J., March 2, 1973, p. 1, col. 7; LaFleur v. Cleveland Bd. of Educ., 465 F.2d 1184 (6th cir., 1972); Williams v. San Francisco Unified School Dist., 340 F.Supp....