Broidrick v. Lindsay
| Court | New York Court of Appeals |
| Writing for the Court | BREITEL |
| Citation | 39 N.Y.2d 641,385 N.Y.S.2d 265,350 N.E.2d 595 |
| Parties | , 350 N.E.2d 595, 14 Fair Empl.Prac.Cas. (BNA) 38, 12 Empl. Prac. Dec. P 11,171 In the Matter of Thomas J. BROIDRICK, Jr., et al., as Trustees of the New York Building and Construction Industry Board of Urban Affairs Fund, et al., Respondents, v. John V. LINDSAY, as Mayor of the City of New York, et al., Appellants. |
| Decision Date | 11 May 1976 |
Page 265
Fair Empl.Prac.Cas. (BNA) 38,
12 Empl. Prac. Dec. P 11,171
Trustees of the New York Building and Construction
Industry Board of Urban Affairs Fund, et
al., Respondents,
v.
John V. LINDSAY, as Mayor of the City of New York, et al., Appellants.
W. Bernard Richland, Corp. Counsel (Beverly Gross, New York City and L. Kevin Sheridan, New York City, of counsel), for appellants.
Robert G. Benisch, Walter M. Colleran and Robert J. Fink, New York City, for respondents.
BREITEL, Chief Judge.
The issue is whether the New York City Deputy Mayor-City Administrator has the power to mandate by regulation affirmative action, in the form of meeting prescribed minority percentages of employment,
Page 266
by constructi contractors with the city. The question arises on appeal from determinations adverse to defendant city in an article 78 proceeding converted into an action for a declaratory judgment. The city appeals.The order of the Appellate Division should be affirmed. The Deputy Mayor's regulations mandating affirmative action were in excess of existing authorizing legislation. To be sure, there is a strong public policy, expressed in both State and local law, against minority discrimination. While the Mayor or the Deputy Mayor may be empowered to require compliance with these laws by construction contractors, no State or local law authorized the city executive to mandate an affirmative action program containing minority hiring percentages. Hence, the regulations, if they otherwise complied with constitutional limitations, were invalid as in excess of the power of the city executive.
On April 2, 1968, the then Mayor issued Executive Order No. 71, which prohibited construction contractors doing business with the city from discriminating in their hiring practices because of race, creed, color, or national origin. The order further provided that the awarding of city contracts would be conditioned upon a bidder submitting an affirmative action program to insure that employees and applicants would be treated without regard to their race, creed, color, or national origin. The term 'affirmative action' was not defined in the order. The Deputy Mayor was given the power to issue rules and regulations to implement the order.
Thereafter, representatives of the city, the State, the contractors, and the labor unions entered into discussions to formulate a uniform plan to meet the affirmative action requirements of the Mayor's executive order and a similar Governor's executive order. Agreement was eventually reached on a plan, known as the 'New York Plan', for on-the-job training of minority group members and their referral for training to appropriate unions. Its purpose and effect, if successful, were to increase the pool of persons eligible for employment by including theretofore excluded members of certain minorities. The plan became effective on December 10, 1970.
Dissatisfied with the effectiveness of the plan, on January 18, 1973, the Mayor withdrew the city from participation. On July 5, 1973, the Deputy Mayor officially promulgated 'Rules, Regulations and Orders of the Deputy Mayor-City Administrator', purportedly pursuant to Executive Order No. 71. Briefly, the regulations provide that, as a precondition to an award of a construction contract with the city, a contractor must agree to make 'good faith' efforts to provide specified 'percentages' of 'minority man-hours' of work on each of the contractor's projects with the city or with others throughout the term of the city contract involved. According to the regulation this is not to be interpreted as requiring the use of 'quotas' in hiring. The regulations further require the contractor to effect 'programs by (building trades) unions or organizations to advance trainees to journeyman status when they successfully complete their course of training, and programs to accept new minority apprentices at the rate of no less than one minority apprentice to every three non-minority apprentices.'
The purpose and effect of the new plan was to go beyond increasing the pool of persons eligible for employment in the building trades, and to assure by mandate the employment of members of minorities previously excluded by invidious discrimination. It is this added purpose and effect which raise the questions presented on this appeal.
Petitioners contend that neither the Mayor nor the Deputy Mayor have the power to promulgate the regulations and that the provision regarding apprentices is in conflict with State law on apprentice training.
Section 343--8.0 of the New York City Administrative Code prohibits discrimination
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in employment by those contracting with the city (Local Law No. 44 of City of N.Y., eff. Sept. 9, 1942). In pertinent part, the section provides: 'It shall be unlawful for any person engaged * * * in * * * construction * * * pursuant to a contract with the city * * * to refuse to employ or to refuse to continue in any employment any person on account of the race, color or creed of such person'.Section 343--8.0 also prohibits an employer from soliciting information about the race, color or creed of an employee or applicant, and requires the wording of relevant parts of the local law to appear on all agreements entered into with the city. Violation of the section is punishable by fine or imprisonment.
Certainly, legislation prohibiting discrimination in employment, such as section 343--8.0 of the Administrative Code, requires executive enforcement (see Gaynor v. Rockefeller, 21 A.D.2d 92, 97, 248 N.Y.S.2d 792, 800, affd. 15 N.Y.2d 120, 256 N.Y.S.2d 584, 204 N.E.2d 627). Yet, executive action in enforcing such legislation may not go beyond stated legislative...
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