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

• Decision Date: 31 December 1975
• Citation: 50 A.D.2d 381,378 N.Y.S.2d 720
• Parties: , 12 Fair Empl.Prac.Cas. (BNA) 129, 11 Empl. Prac. Dec. P 10,687 The BROOKLYN UNION GAS COMPANY, Petitioner, v. NEW YORK STATE HUMAN RIGHTS APPEAL BOARD et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 720

378 N.Y.S.2d 720

50 A.D.2d 381, 12 Fair Empl.Prac.Cas. (BNA) 129,

11 Empl. Prac. Dec. P 10,687

The BROOKLYN UNION GAS COMPANY, Petitioner, v. NEW YORK STATE HUMAN RIGHTS APPEAL BOARD et al., Respondents.

Supreme Court, Appellate Division, Second Department.

Dec. 31, 1975.

Cullen & Dykman, Brooklyn (John E. Murphy, Brooklyn, of counsel), for petitioner.

Henry Spitz, New York City (Ann Thacher Anderson, New York City, of counsel), for respondent State Division of Human Rights.

Proskauer, Rose, Goetz & Mendelsohn, New York City (Morton M. Maneker, Edward Silver, Sara S. Portnoy and Stephen E. Tisman, New York City, of counsel), for American Airlines, Inc. (and 15 other corporations) amici curiae.

Before RABIN, Acting P.J., and COHALAN, MARGETT, BRENNAN and SHAPIRO, JJ.

COHALAN, Justice.

The main issue raised by this proceeding is whether the petitioner, a private employer, is obligated to provide the same benefits for pregnancy-related disabilities as are granted for other temporary disabilities, despite the exclusion of pregnancy-related disabilities in the Disability Benefits Law (DBL) (Workmen's Compensation Law (WCL), art. 9) and in the Employee Benefit Plan of the petitioner. As interpreted in cases involving schools and school teachers, the over-whelming weight of authority mandates that the benefits be provided. We think the reasons stated in those cases have no instant application, as will be discussed below.

This proceeding had its genesis in the complaint of a 'desk job' clerk of the petitioner (Company). A married woman, she became pregnant and, in writing, requested a six-month voluntary leave of absence. At the same time she orally asked for her four weeks of accumulated sick leave. The former request was granted, the latter denied. However, she was paid for three weeks of accrued vacation time.

In due course, and at almost full term, her child was delivered by Caesarean section. Nothing in the record indicates that the manner of delivery was vital to her survival or to that of her child. ¹ Her coverage under the medical plan then in force was continued by the Company during her leave of absence.

Thus, her sole formal complaint is that she was denied the four weeks of sick leave. ² As to this item, the Company contends that any payments made under its Employee Benefit Plan are completely voluntary on its part. There is no bargaining compulsion and no contract of any kind with any employee group as to this item. Under its 'general provisions', the plan states:

'2. Plan is not a Contract.

Neither the establishment of the plan nor of these rules and regulations shall be held or construed as a contract or consideration for employment, nor binding the Company at any time to institute or continue the payment of benefits hereunder, nor shall it interfere with the Company in the discharge of any employee or in its treatment of an employee.'

Under article VII (sick pay), the plan provides:

'The Company's Employee Benefit Plan provides sick pay benefits in addition to such benefits for which provision is required to be made by the New York State Disability Benefits Law (Statutory Benefits).

'As to Statutory Benefits

'The Company is self-insured to provide Statutory Benefits to eligible employees. An employee becomes eligible when he has been employed for four or more consecutive weeks including previous employment by covered employers. These benefits are payable for and commence with the eighth consecutive day of disability as defined in the law * * *.

'The maximum duration of benefits is 26 weeks in any period of 52 consecutive calendar weeks or 26 weeks in any one period of disability.

'At present the Company is assuming the entire cost of providing Statutory Benefits and no contributions are required from employees.

'As to Benefits under the Employee Benefit Plan

'Employees entitled to Statutory Benefits in respect of any given absence will have their Benefits under the Plan reduced by the amount of such Statutory Benefits.'

The mention of statutory benefits--as stated and iterated in the Plan at article VII--has reference to section 205 of the WCL.

As germane, that section reads:

'No employee shall be entitled to benefits under this article:

'3. for any period of disability caused by or arising in connection with a pregnancy (with an exception not at issue)'.

The legislative purpose of this exclusion was that in order 'to provide the protection deemed necessary to the workers of the State at reasonable cost, disabilities arising from pregnancy have been excluded.' (1948 Report of the New York State Joint Legislative Committee on Industrial and Labor Conditions, N.Y.Legis.Doc., 1949, No. 67, p. 44.)

Thus, it is got gender, as such, which impelled the Legislature to act. Rather, it was, and is, the prohibitive cost which dictated the exclusion. If included it might well have been considered reverse discrimination as male employees and women beyond their childbearing years would have had to support this program even though they could not hope to gain any benefit from it.

The response by the complainant to this unanbiguous statute is that it is discriminatory in nature and that, as to maternity benefits, it has been impliedly repealed by the Human Rights Law (Executive Lar, art. 15) and specifically by section 296 thereof, which read at the time in question:

'Unlawful discriminatory practices

'1. It shall be an unlawful discriminatory practice:

'(a) For an employer, because of the age * * * or sex of any individual * * * to discriminate against such individual in compensation or in terms, conditions or privileges of employment.'

This argument is rebutted by the facts. Article 9 of the WCL (Disability Benefits Law) has been in effect since April 13, 1949 (L.1949, ch. 600); subdivision 3 of section 205 has been a part of that law since its enactment.

Article 15 of the Executive Law (Human Rights Law) came into being by virtue of chapter 800 of the Laws of 1951. It derives from the Executive Law of 1909, section 296 of which was added by section 1 of chapter 118 of the Laws of 1945. However, the words 'or sex', as a possible subject of discrimination, were not a part of the law until the Legislature inserted them (L.1965, ch. 516, § 1), effective September 1, 1965.

From the time of the enactment of the DBL in 1949, until 1965 when the words 'or sex' were added, 36 bills to repeal the exclusion of pregnancy were introduced in one or both houses of the Legislature--all without success. From 1965 to date 12 similar bills have been introduced--with a similar lack of success.

With these statistics before us it is difficult to credit the argument of implied repealer. It would impugn the collective intelligence of the Legislature to infer that its left hand did not know what its right hand was doing. From the outset, that body has been able to distinguish the separate and different goals of the two statutes, i.e., payment for off-the-job contracted illnesses as to the one, and equality of status as to the other

With noted exceptions (see WCL, § 201, subd. 5), every employer, large or small, must carry disability benefits insurance for his employees. No one would seriously suggest that a merchant so obligated, and employing three or four persons, including one nubile woman, was pursuing a discriminatory practice if he refused to pay maternity benefits to the female employee if she were to become pregnant Is it not then an act of discrimination against a large corporation employing many women of childbearing age of it is forced, under the sanctions of the Human Rights Law, to assume such a financial burden? I think so. An act of corporate kindness should not be transmogrified by administrative fiat into a fixed obligation even beyond the intent of the donor.

I now turn to a consideration of the cases involving pregnancy in school-related matters. Before doing so, however, it should be noted that teachers, unlike private employees, do not come within the provisions of the DBL (see WCL, § 201, subds. 5 and 6). Teachers are covered by the Education Law (see section 3005--b as to teachers outside the City of New York and sections 2554, subd. 13, par. b and 2573, subd. 12 as to those within the city).

In three cases involving Boards of Education recently decided by this court (Board of Educ. of Union Free School Dist. No. 2, East Williston, Town of North Hempstead v. New York State Div. of Human Rights, 42 A.D.2d 49, 345 N.Y.S.2d 93, affd. 35 N.Y.2d 673, 360 N.Y.S.2d 887, 319 N.E.2d 202; Board of Educ. of Union Free School Dist. No. 22, Towns of Oyster Bay & Babylon v. New York State Div. of Human Rights, 42 A.D.2d 600, 345 N.Y.S.2d 101; Matter of Board of Educ. of City of New York v. State Div. of Human Rights, 42 A.D.2d 854, 346 N.Y.S.2d 843, affd. 35 N.Y.2d 675, 360 N.Y.S.2d 887, 319 N.E.2d 203), the question posed did not reach the issue now before us. Thus, in the East Williston case, Mr. Justice Hopkins stated (42 A.D.2d at p. 52, 345 N.Y.S.2d at p. 98):

'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 Oyster Bay & Babylon case adopted this rationale, citing the East Williston case. The City of New York case also cited East Williston; we there said, in pertinent part:

'We are of the opinion that the determination that petitioner is guilty of discriminatory practices in its maternity leave policies has been established and that a Pregnant teacher who goes on maternity leave should be permitted to use sick leave and sabbatical leave to the same extent as Other teachers suffering from a temporary physical disability for the duration of such disability' (emphasis supplied).

In Union Free School Dist. No. 6 of Towns of Islip & Smithtown v. New York State Human Rights Appeal Bd., 35 N.Y.2d 371, 362...