Evening Sentinel v. National Organization for Women

• Citation: 168 Conn. 26,357 A.2d 498
• Court: Connecticut Supreme Court
• Decision Date: 25 February 1975
• Parties: , 10 Fair Empl.Prac.Cas. (BNA) 1043, 9 Empl. Prac. Dec. P 10,027 The EVENING SENTINEL et al. v. NATIONAL ORGANIZATION FOR WOMEN. The EVENING SENTINEL et al. v. COMMISSION ON HUMAN RIGHTS AND OPPORTUNITIES.

Page 498

357 A.2d 498

168 Conn. 26, 10 Fair Empl.Prac.Cas. (BNA) 1043,

9 Empl. Prac. Dec. P 10,027

The EVENING SENTINEL et al. v. NATIONAL ORGANIZATION FOR WOMEN.

The EVENING SENTINEL et al. v. COMMISSION ON HUMAN RIGHTS AND OPPORTUNITIES.

Supreme Court of Connecticut.

Feb. 25, 1975.

William J. Secor, Jr., Waterbury, with whom was Donald McPartland, Waterbury, for appellants (plaintiffs).

Bernard F. McGovern, Jr., Asst. Atty. Gen., with whom, on the brief, were Robert K. Killian, Atty. Gen., and F. Michael Ahern, Asst. Atty. Gen., for appellee (defendant commission).

Before HOUSE, C.J., and SHAPIRO, LOISELLE, MacDONALD and BOGDANSKI, JJ.

SHAPIRO, Associate Justice.

The plaintiffs, whose newspapers are published and circulated in this state, have appealed from the judgment of the Court of Common Pleas dismissing their appeal from the action of the Commission on Human Rights and Opportunities ordering the plaintiffs to 'cease and desist the use of segregated columns for classified employment based upon sex.' The plaintiffs attack a finding of fact by the hearing tribunal, ¹ claim that the conclusions of the hearing tribunal were contrary to law and not supported by substantial and competent evidence, and complain that the order of the hearing tribunal is excessively broad.

The trial court in its memorandum of decision recited the material facts as set forth in the hearing tribunal's decision. The court found there was substantial and competent evidence submitted to the hearing tribunal that the plaintiffs aided and abetted in the doing of acts declared to be unfair employment practices under General Statutes § 31-126, being a portion of chapter 563, the Connecticut Fair Employment Practices Act, as amended, and hereinafter referred to as CFEP. ² Whether the court's conclusion is correct depends upon the application of the provision in General Statutes § 31-128(b) that '(t)he findings of the hearing tribunal as to the facts, if supported by substantial and competent evidence, shall be conclusive.' Board of Education v. Commission on Civil Rights, 153 Conn. 652, 659, 220 A.2d 278. It is undisputed that the plaintiffs segregate their help-wanted advertisements into three categories: Help Wanted Male, Help Wanted Female, and Help Wanted Male/Female.

The issue underlying this appeal is whether the maintenance of sex-designated employment opportunities columns constitutes a per se violation of General Statutes § 31-126 of the CFEP. A resolution of this question in the affirmative is dispositive of the plaintiffs' attack on the finding and conclusion of the hearing tribunal because the parties do not dispute that such columns exist in the plaintiffs' newspapers. It also follows, as we later discuss the issue, that an order prohibiting a practice which is a per se violation is not too broad if its terms are limited to eliminating the illegal practice.

At the threshold of our discussion we point out that this court has held repeatedly that where the meaning of a statute is plain and unambiguous, the enactment speaks for itself and there is no occasion to construe it. Meriden v. Board of Tax Review, 161 Conn. 396, 402, 288 A.2d 435; 2A Sutherland, Statutory Construction (4th Ed.) §§ 46.01, 46.03.04. There is no indication in the text of § 31-126 which would permit classification based upon sex to be treated differently than classifications based upon race, religion, age, national origin or ancestry. Dent-Craft Laboratories of Connecticut, Inc. v. Sullivan, 148 Conn. 94, 96, 167 A.2d 714; General Realty Improvement Co. v. New Haven, 133 Conn. 238, 241, 50 A.2d 59; see State v. Dorau, 124 Conn. 160, 168, 198 A. 573; 2A Sutherland, op. cit. § 47.17.

The Supreme Court of the United States in Brown v. Board of Education, 347 U.S. 483, 495, 74 S.Ct. 686, 98 L.Ed. 873, adopted the principle that there can be no such thing as separate but equal. Thus there can be no doubt that segregating employment opportunities advertisements into racial, religious, age, national origin or ancestry or sex classifications constitutes discrimination. General Statutes § 31-122(j); Pittsburgh Press Co. v. Human Rel. Comm., 413 U.S. 376, 387-88, 93 S.Ct. 2553, 37 L.Ed.2d 669; Frontiero v. Richardson, 411 U.S. 677, 682, 93 S.Ct. 1764, 36 L.Ed.2d 583; Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225; Evans v. Sheraton Park Hotel, 503 F.2d 177, 184-85 (D.C.Cir.); Head v. Timken Roller Bearing Co., 486 F.2d 870, 879 (5th Cir.); United States v. International Longshoremen's Assn., 460 F.2d 497 (4th Cir.), cert. denied,409 U.S. 1007, 93 S.Ct. 439, 34 L.Ed.2d 300; Morrow v. Mississippi Publishers Corporation, 5 F.E.P. Cases 287, 289 (S.D.Miss.); K-Mart Discount Stores v. Colorado Civil Rights Comm., 511 P.2d 926, 927 (Colo.App.); Passaic Daily News v Blair, 63 N.J. 474, 308 A.2d 649; N.O.W. v. State Division of Human Rights, 34 N.Y.2d 416, 358 N.Y.S.2d 124, 314 N.E.2d 867; Pittsburgh Press Co. v. Pittsburgh Comm. on Human Rel., 4 Pa.Comwlth. 448,287 A.2d 161, 167, aff'd, Pittsburgh Press Co. v. Human Rel. Comm., supra; note, 'Discrimination in Classified Advertising,' 38 Albany L.Rev. 847, 860-64.

Subsection (f) of § 31-126 does not allow any 'person, except in the case of a bona fide occupational qualification or need, to advertise employment opportunities in such a manner as to restrict such employment so as to discriminate . . ..' It is manifest that according to this statute a corporation is not privileged under this act to do what an individual is precluded from doing. General Statutes §§ 31-122(b), 1-1(k). When a newspaper publishes an advertising section, it is engaging in advertising and thus comes within the scope of § 31-126(f). Morrrow v. Mississippi Publishers Corporation, supra; Passaic Daily News v. Blair, supra; N.O.W. v. State Division of Human Rights, supra; Pittsburgh Press Co. v. Pittsburgh Comm. on Human Rel., supra.

It would negate the effectiveness of the act, as well as conflict with the meaning of the statute, if the placer of the advertisement were precluded from discrimination, but not the person printing and distributing the advertisement. A statute should not be interpreted in any way to thwart its purpose. Turner v. Scanlon, 146 Conn. 149, 157, 148 A.2d 334.

Subsection (e) of § 31-126 prohibits 'any person, whether an employer . . . or not, to aid, abet . . . the doing of any of the acts herein declared to be unfair employment practices . . ..' (Emphasis supplied.) It is clear that the subsections aim at curbing certain acts which are labeled to be unfair employment practices. Thus, although a newspaper is not an employment agency, Brush v. San Francisco Newspaper Printing Co., 315 F.Supp. 577 (N.D.Cal.), aff'd, 469 F.2d 89 (9th Cir.), cert. denied, 410 U.S. 943, 93 S.Ct. 1369, 35 L.Ed.2d 609, it still may violate the CFEP by aiding and abetting the commission of unfair employment practices. There is no indication that this prohibition is to apply solely to persons who aid and abet those employers not exempted from the act. ³ The wording of the statute plainly is aimed at all persons who aid the doing of an unfair employment practice. Thus, although an employer may be exempt from the application of this act, discrimination as defined in § 31-126(a) constitutes an unfair employment practice, which others, including newspapers, are not allowed to promote.

The plaintiffs rely on two California cases for the assertion that in order for the aiding and abetting to be prohibited, it must first be shown, in each individual case, that the plaintiff had knowledge of the illegal purpose and intent. Winning v. Board of Dental Examiners, 114 Cal.App. 658, 300 P. 866; Osborne v. Baughman, 85 Cal.App. 224, 259 P. 70. These cases are not relevant because they stand for the proposition that aiding and abetting may impute knowledge to the actors and because both cases involve the drastic remedy of suspending professional licenses.

To apply the plaintiffs' approach would negate the CFEP by encouraging newspapers to shut their eyes to fact and law and would dilute the principle that ignorance of the law is no excuse. To some extent, it would thwart the purpose of the CFEP, rendering it unenforceable. See International Brotherhood v. Commission on Civil Rights, 18 Conn.Sup. 125, 130, aff'd, 140 Conn. 537, 544, 102 A.2d 366; Pond v. Braniff Airways, Inc., 500 F.2d 161, 166 (5th Cir.); Matter of Holland v. Edwards, 307 N.Y. 38, 45, 119 N.E.2d 581. 'It seems to us that the prominent, if not indispensable place of newspaper classified advertising in the employment recruiting field is such that it is unrealistic to contend that a publisher of a paper who either initiates or acquiesces in advertising publication practices which discriminate or encourage or facilitate discrimination in employment is not 'aiding' in such discrimination within the meaning of the statute. To borrow, as do appellants, from definitions of aiding and abetting in the criminal field, where criminal intent is stressed because the abettor is a criminal principal, is entirely inappropriate in the context of the present statute which is basically a remedial, not a criminal one.' Passaic Daily News v. Blair, supra, 63 N.J. 488, 308 A.2d 656. A newspaper cannot 'well assert that there is no causal relationship between the proscribed practice and the fostering of sex-discrimination in employment. Such a relationship is not only a matter of justifiable lay inference on the fact of things . . ..' Id., 484, 308 A.2d 654.

Specific intent is not an element requisite to a violation of the CFEP. This has been accepted in federal cases where good faith was held to be no defense. Satterwhite v. United Parcel Service, Inc., 496 F.2d 448, 451 (10th Cir.); Williams v. General Foods Corporation, 492 F.2d 399 (7th Cir.). This interpretation has been applied in other fields, for example, federal antitrust law. United States v. Griffith, 334 U.S. 100, 105, 68...