Brooklyn Union Gas Co. v. New York State Human Rights Appeal Bd.

• Decision Date: 20 December 1976
• Docket Number: CROUSE-IRVING
• Citation: 359 N.E.2d 393,390 N.Y.S.2d 884,41 N.Y.2d 84
• Parties: , 359 N.E.2d 393, 14 Fair Empl.Prac.Cas. (BNA) 42, 13 Empl. Prac. Dec. P 11,381 BROOKLYN UNION GAS COMPANY, Respondent, v. NEW YORK STATE HUMAN RIGHTS APPEAL BOARD et al., Appellants. AMERICAN AIRLINES, INC., Respondent, v. STATE HUMAN RIGHTS APPEAL BOARD et al., Appellants. STATE DIVISION OF HUMAN RIGHTS, Respondent. v.MEMORIAL HOSPITAL, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 884

390 N.Y.S.2d 884

41 N.Y.2d 84, 359 N.E.2d 393, 14 Fair

Empl.Prac.Cas. (BNA) 42,

13 Empl. Prac. Dec. P 11,381

BROOKLYN UNION GAS COMPANY, Respondent, v. NEW YORK STATE HUMAN RIGHTS APPEAL BOARD et al., Appellants.

AMERICAN AIRLINES, INC., Respondent, v. STATE HUMAN RIGHTS APPEAL BOARD et al., Appellants.

STATE DIVISION OF HUMAN RIGHTS, Respondent. v. CROUSE-IRVING MEMORIAL HOSPITAL, Appellant.

Court of Appeals of New York.

Dec. 20, 1976.

Ann Thacher Anderson and Beverly Gross, New York City, for New York State Division of Human Rights, appellants in the first and second above-entitled proceedings and respondent in the third above-entitled proceeding.

John E. Murphy and Harry G. Hill, Brooklyn, for respondent in the first above-entitled proceeding.

Rosalind S. Fink, Cecelia H. Goetz and Susan B. Lindenauer, New York City, for Special Committee on Women's Rights of the New York County Lawyers' Association, amicus curiae.

James B. McQuillan, New York City, respondent in the second above-entitled proceeding.

John F. Lawton, Syracuse, for appellant in the third above-entitled proceeding.

David L. Benetar, New York City, Eugene Dennis Ulterino, Rochester and Stanley Schair, New York City, for New York Chamber, Associated Industries of New York State, Inc., and another, amici curiae.

Edward Silver, Morton M. Maneker, Sara S. Portnoy and Stephen E. Tisman, New York City, for American Telephone & Telegraph Company and others, amici curiae.

Susan C. Ross, Kathleen Willert Peratis, Melvin L. Wulf and Eve Cary, New York City, for American Civil Liberties Union and another, amici curiae.

JONES, Judge.

We hold that the provisions of subdivision 3 of section 205 of our State's Disability Benefits Law do not operate to shelter employment practices in the private sector that would otherwise be impermissibly discriminatory under our Human Rights Law. The imperative of the latter overrides the permissiveness of the former.

We have held that an employment personnel policy which singles out pregnancy and childbirth for treatment different from that accorded other instances of physical or medical impairment or disability is prohibited by the Human Rights Law (Union Free School Dist. No. 6, Towns of Islip & Smithtown v. New York State Human Rights Appeal Bd., 35 N.Y.2d 371, 362 N.Y.S.2d 139, 320 N.E.2d 859; Board of Educ. v. New York State Div. of Human Rights, 35 N.Y.2d 673, 360 N.Y.S.2d 887, 319 N.E.2d 202; Matter of Board of Educ. v. State Div. of Human Rights, 35 N.Y.2d 675, 360 N.Y.S.2d 887, 319 N.E.2d 203). ¹ In each of these cases the employment was in the public sector and we concluded that a practice of differentiated treatment of pregnancy-related disability came within the statutory ban.

In the present cases we confront conceptually indistinguishable personnel practices but now for the first time the employment is in the private sector. This is said to call for a different consequence because the assertedly discriminatory practice is with respect to benefits within the ambit of the Disability Benefits Law (DBL), which is applicable to private but not to public employment. Under the DBL, disability 'caused by or arising in connection with a pregnancy' is excepted from the minimum benefits mandated by that Law ( § 205, subd. 3). We are urged to hold that the provisions of the DBL rather than those of the Human Rights Law (HRL) establish the minimum performance to be required of private employers--in effect that compliance with the minimum standards of the DBL will excuse failure to comply with the mandate of the HRL. We reject this conclusion.

There is an evident incongruity between the DBL and the HRL, and the determinative issue is which law shall be held to be operatively controlling. Initially we note that the DBL (Workmen's Compensation Law, art. 9), adopted in 1949, was enacted as socioeconomic legislation designed to assure economic support for working men and women temporarily unable to continue their employment because of sickness or injury unconnected with that employment, and thus to bridge the gap between workmen's compensation and unemployment insurance (see Matter of Flo v. General Elec. Co., 7 N.Y.2d 96, 99, 195 N.Y.S.2d 652, 654, 163 N.E.2d 876, 878; Report of Joint Legislative Committee on Industrial and Labor Conditions, N.Y.Legis.Doc., 1949, No. 67, p. 44). The new statute fixed a floor, not a ceiling; it contained no prohibition against granting disability benefits in excess of those mandated by the DBL, thereby to supplement and to exceed the legislatively mandated minimum. Public employers were nor required to conform to the requirements of the DBL ( § 201, subd. 4) although they were authorized voluntarily to elect to be covered ( § 212, subd. 2). Various factors, including considerations of the cost of providing benefits, went into the determination of benefit coverage and benefit levels (see Report of Joint Legislative Committee on Industrial and Labor Conditions, N.Y.Legis.Doc., 1949, No. 67, p. 44).

In 1965 the Human Rights Law (Executive Law, art. 15) was amended to prohibit discrimination in employment on account of sex. The new law laid down a blanket proscription applicable to all employers, public and private, with more than three employees (Executive Law, § 292, subd. 5); its objective was quite different from, though not necessarily at odds with, the objective of the DBL. 'It shall be an unlawful discriminatory practice * * * For an employer * * * 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).)

In the effort to reconcile the HRL and the DBL much attention has been devoted in the courts below to the principle and mechanics of the so-called doctrine of 'implied repeal'. In our view it advances neither analysis nor comprehension to treat the statutory relationship of the 1965 HRL to the 1949 DBL in the category of implied repeal. Indeed argument in that formulation has been abandoned by the Human Rights Division in our court. However the issue may be verbalized, the question is whether the earlier and still existing sections of the DBL now relieve private employers from the necessity of compliance with the mandate of the HRL. It does not have to be concluded that the HRL articulates a superior command, or that it reflects a worthier public policy than does the DB it suffices if to be recognized that the HRL expresses a Different command.

Analysis of the statutory predicament we confront may be aided by resort to another discipline and to the geometric concept of 'skew lines'--two nonparallel lines which do not intersect however far extended and which accordingly do not lie in the same plane. So, too, here there is no collision between the HRL and the DBL; they pass each other without intersection. ² Each law is cast in terms of minimum requirements, but from different perspectives. As in other instances of concurrent independent minima, one set of minimum requirements will be operative in one circumstance, the other set in another circumstance. That this is so involves no contradiction or logical difficulty. Thus, at present for employers with three or fewer employees, the operative minimum is only that of the DBL; for all others it is that of the HRL. Or by way of another perspective, if the HRL were to be repealed--a contingency realistically unthinkable, but perhaps illustratively useful--the DBL would once again become operative for all covered employment without the necessity of re-enactment. We do not hold, then, that the HRL struck down the DBL; rather in areas within the reach of both statutes the HRL rendered the DBL dormant. In sum, the DBL and the HRL each lay down minimum demands on employers. Whichever statute imposes the greater obligation is the one which becomes operative. In the cases before us it is the HRL.

To determine whether the DBL survived the enactment of the 1965 amendment to the HRL, or whether the latter impliedly repealed the former, or whether, as we hold, the two statutes are to be read together as resulting in the imposition of two concurrent independent minimum standards is no arrogation of a legislative prerogative. It is rather, whatever may be the outcome, the ordinary discharge of a familiar judicial responsibility. There can be no escape from what the dissent characterizes as the 'ranking of statutes' if it is thereby intended to refer to the fact that the provisions of either the HRL or the DBL must be held to be operative. The dissent would hold that the DBL sets the operative standard; we hold that in this instance it is the HRL.

The private employers argue that it is significant that the pre-existing differentiated treatment permitted with respect to pregnancy disabilities under the DBL was not prohibited by explicit provision in the 1965 amendment of the HRL. This contention misconceives the thrust and design of the HLR; it was intended as a blanket proscription. Surely it cannot be accepted that each discriminatory practice in use in 1965, whether existing by legislative grace or in consequence of employment custom or usage, should have been marked for explicit demise. Indeed, no discriminatory practice was identified--the very purpose of the HRL was by blanket description to eliminate all forms of discrimination, those then existing as well as any later devised. To contend that, absent explicit condemnation, any pre-existing discriminatory practice which might be said to have had legislative blessing prior to 1965 was assured continued acceptability would be largely to emasculate the new statute, intended as it was to eradicate all discrimination. What is significant is the fact that with the means so readily available to it the Legislature chose not to exempt the benefits commanded by the DBL from the prohibition of the HRL. That, as the dissent points...