Cullen v. Nassau County Civil Service Commission

• Decision Date: 07 July 1981
• Citation: 53 N.Y.2d 492,425 N.E.2d 858,442 N.Y.S.2d 470
• Parties: , 425 N.E.2d 858, 29 Empl. Prac. Dec. P 32,792 Lorraine CULLEN, Complainant, v. NASSAU COUNTY CIVIL SERVICE COMMISSION et al., Respondents, and New York State Division of Human Rights, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 470

442 N.Y.S.2d 470

53 N.Y.2d 492, 425 N.E.2d 858, 29

Empl. Prac. Dec. P 32,792

Lorraine CULLEN, Complainant, v. NASSAU COUNTY CIVIL SERVICE COMMISSION et al., Respondents and New York State Division of Human Rights, Appellant.

Court of Appeals of New York.

July 7, 1981.

Elaine Berger and Ann Thacher Anderson, New York City, for appellant.

Edward G. McCabe, County Atty. (Robert O. Boyhan, Deputy County Atty., of counsel), for respondents.

OPINION OF THE COURT

FUCHSBERG, Judge.

This case of sex discrimination presents questions concerning both the nature of the proof of damages and the role of intent in an award by the State Division of Human Rights for personal humiliation and mental anguish allegedly suffered by a complainant at the hands of a discriminator.

These issues are presented in the following factual and procedural context:

It is undisputed that complainant Lorraine Cullen successfully passed a civil service examination for the position of investigator in Nassau County's Department of Probation and subsequently was appointed to and served satisfactorily in this capacity. It is also unquestioned that when, at a later time, she filed an application to take an open competitive test for a similar post in the Department of Civil Service of the same county, she was denied permission to do so because she had not accumulated six years of criminal investigative experience as a member of either a police force or the staff of a District Attorney's office, a qualification specified in the announcement of the examination.

The complaint, which followed promptly after the advice that she was ineligible, charged the Department of Civil Service with sex discrimination (Executive Law, § 296, subd. 1, par. In due course, following a hearing before an Administrative Law Judge, the Commissioner of Human Rights found that the six-year criminal investigative experience requirement was not job-related and that, because the interposition of irrelevant physical standards, especially one relating to height, historically had precluded female applicants from proportionate opportunities to gain experience as police officers in Nassau County, the over-all effect was to discriminate against members of that sex. In his order, the commissioner went on to direct that the Department of Civil Service cease and desist from such discrimination, that it permit the complainant to take a substitute examination, and, thereafter, to grade, evaluate and consider her for appointment to the position for which she had applied, all on the merits. In addition, although Ms. Cullen had not adduced any affirmative proof of mental anguish or humiliation or other personal or monetary damage, the order awarded her "compensatory damages" in the sum of $1,000 for the discriminatory practice's "effect upon her". ¹ This disposition was affirmed by the State Human Rights Appeal Board in all respects.

However, in the present proceeding, brought pursuant to section 298 of the Executive Law, the Appellate Division, 78 A.D.2d 896, 433 N.Y.S.2d 222, unanimously modified the appeal board's order by deleting the award of compensatory damages. It grounded its holding on the fact that it had not been demonstrated that the Civil Service Commission's discrimination was intentional. Albeit on a different rationale, we now uphold the Appellate Division's order. Our analysis follows.

In enacting the Human Rights Law, our State Legislature, in a preamble, minced no words in declaring that the discriminatory practices it was interdicting violated the fundamental principles underlying a free society and threatened the peace and tranquility of the State (Executive Law, § 290; see City of Schenectady v. State Div. of Human Rights, 37 N.Y.2d 421, 423-424, 373 N.Y.S.2d 59, 335 N.E.2d 290). Among the variety of sanctions it therefore authorized the division to employ to combat the pernicious effects of the outlawed evils was a civil remedy for the benefit of those who are the target of such offenses. So, specifically included was the "awarding of compensatory damages to the person aggrieved by such practice", "as in the judgment of the division will effectuate the purposes of this article" (Executive Law, § 297, subd. 4, par. c, cl. see 300 Gramatan Ave. Assoc. v. State Div. of Human Rights, 45 N.Y.2d 176, 183, 408 N.Y.S.2d 54, 379 N.E.2d 1183).

Conscious that this broadly stated, policy-laden discretion is not confined to physical or out-of-pocket losses alone, we have held that the compensatory damages which it may fix can include an award for such less tangible injuries as humiliation and mental anguish (Batavia Lodge No. 196, Loyal Order of Moose v. New York State Div. of Human Rights, 35 N.Y.2d 143, 145-146, 359 N.Y.S.2d 25, 316 N.E.2d 318; State Comm. for Human Rights v. Speer, 29 N.Y.2d 555, 324 N.Y.S.2d 297, 272 N.E.2d 884, revg. on dissent at 35 A.D.2d 107, 112-113, 313 N.Y.S.2d 28; see, also, Sex Discrimination--Emotional Distress, Ann., 61 A.L.R.3d 944; Civil Rights--Damages--Emotional Distress, Ann., 40 A.L.R.3d 1290).

But the fact that compensation may be allowed for emotional trauma does not depend on a showing that the discrimination which produced it was intentional. The overriding concern of the Legislature in pursuing the goals it enunciated had to have been the pragmatics of the consequences of challenged practices rather than their motivations. Beyond that, it would be unrealistic to demand proof of intention. By definition, under a facially neutral policy, no per se intent to discriminate can be expected to exist. To require such proof as a prelude to the fashioning of an appropriate remedy in such circumstances would be to put instances of discrimination whose subtlety may but add to their pervasiveness beyond its reach.

Batavia Lodge was not to the contrary. While, in expressing our disagreement with the intermediate appellate holding that proof of out-of-pocket expenses was necessary to a compensation award, we noted that "particularly * * * where * * * the discriminatory act is intentionally committed" (35 N.Y.2d, at p. 147, 359 N.Y.S.2d 25, 316 N.E.2d 318), a lesser standard of proof may suffice, we did not suggest that such intention was a sine qua non. Moreover, since our court there confronted discrimination...