Fullilove v. Beame

• Court: New York Court of Appeals
• Writing for the Court: PER CURIAM; FUCHSBERG; COOKE; FUCHSBERG, J., dissents and votes to reverse in a separate opinion in which MEYER
• Citation: 423 N.Y.S.2d 144,48 N.Y.2d 376,398 N.E.2d 765
• Parties: , 398 N.E.2d 765, 22 Empl. Prac. Dec. P 30,572 In the Matter of H. Earl FULLILOVE et al., Respondents, v. Abraham BEAME, as Mayor of the City of New York, et al., Appellants.
• Decision Date: 20 November 1979

Page 144

423 N.Y.S.2d 144

48 N.Y.2d 376, 398 N.E.2d 765, 22

Empl. Prac. Dec. P 30,572

In the Matter of H. Earl FULLILOVE et al., Respondents, v. Abraham BEAME, as Mayor of the City of New York, et al., Appellants.

Court of Appeals of New York.

Nov. 20, 1979.

Allen G. Schwartz, Corp. Counsel, New York City (L. Kevin Sheridan, Esmeralda Simmons, Brooklyn, and Michael A. Vaccari, New York City, of counsel), for appellants.

Robert G. Benisch, New York City, for respondents.

OPINION OF THE COURT

PER CURIAM.

In this case as well as in Matter of Fullilove v. Carey, 48 N.Y.2d ---, --- N.Y.S.2d ----, --- N.E.2d ---- (decided herewith), the fundamental question presented is not whether affirmative action is permissible or desirable. The question, simply and narrowly, is whether, under our governmental system, the central feature of which is distribution of powers, the executive has the authority to initiate affirmative action without legislative authorization.

Although the rule elsewhere may differ, the law of New York is clear.

The State Legislature, as well as the New York City Council, has unequivocally condemned discriminatory hiring practices. The executive clearly has the power and obligation to implement programs designed to prohibit discriminatory hiring practices. Indeed, the State Legislature has gone so far as to state that voluntary use of a State-approved affirmative action plan by private employers "shall not be an unlawful discriminatory practice" (Human Rights Law (Executive Law), § 296, subd. 12).

But as this court stated in Matter of Broidrick v. Lindsay, 39 N.Y.2d 641, 644, 646-647, 385 N.Y.S.2d 265, 267-268, 350 N.E.2d 595, 598: "Nowhere in the law has the city council prescribed affirmative action to redress the effects of discrimination. There is a dramatic distinction between the expressed legislative policy of prohibiting employment discrimination and the mayoral policy of mandating employment 'percentages'." Similarly there is a vast difference between permitting employers to voluntarily adopt an affirmative action program and mandating that this be done involuntarily under threat of legal sanctions.

The difference between obligations that require the taking of certain steps, and those that merely require one to refrain from others, is, in this sensitive area of racial relations, not merely one of degree, but of kind. Where the Legislature has set out nondiscrimination as the policy of the State, an order mandating that employers take certain actions cannot be viewed as merely one step further along a continuum.

In Matter of Broidrick (supra), because only specific administrative regulations were in issue, only those regulations, and not the mayoral order in which they were grounded, were struck by this court as being in excess of the legislative authorization. This led some (although not the courts below) to conclude, mistakenly, that the defect could be cured by different regulations which did not prescribe specific percentage quotas.

The difficulty in Broidrick, as here, is not the means employed by the executive to impose affirmative action in hiring practices, but rather that the executive attempted it at all. At the same time we note the distinction, carefully preserved in Broidrick, between affirmative action in hiring practices, and executive affirmative action which "only would enlarge the pool of persons eligible for employment based on discrimination-free merit selection" (Matter of Broidrick v. Lindsay, 39 N.Y.2d 641, 649, 385 N.Y.S.2d 265, 269, 350 N.E.2d 595, 599, Supra).

In sum, we would emphasize that the desirability of adopting a policy of affirmative action in hiring practices, and mandating the same, is not a prerogative of the executive, but rather of the legislative branch and it is to those bodies that persons seeking to impose affirmative action should direct their attention.

FUCHSBERG, Judge (dissenting).

Because I believe that neither the Governor's Executive Order No. 45 nor the 1977 Rules and Regulations promulgated on behalf of the Mayor of the City of New York in implementation of the latter's Executive Order No. 71 constitutes an excessive exercise of executive power, because in my opinion the majority's reading of Matter of Broidrick v. Lindsay, 39 N.Y.2d 641, 385 N.Y.S.2d 265, 350 N.E.2d 595, to strike down each of these measures impermissibly narrows the meaning of that decision, and because the net effect of the court's determination today is to prevent the heads of State and local governments from taking lawful steps toward the realistic enforcement of our strong legal and societal policies against race and sex discrimination, I must vote to reverse in both cases.

By the way of preface, since the majority's nullification of the two executive actions stems from their inclusion of a requirement for "affirmative action", in articulating my views I think it best to take the scare factor out of that phrase. Though subsuming a broad range of policies and programs that have been introduced at State and Federal levels, "affirmative action" is basically a concept representative of the conviction that full equality of employment opportunity cannot be achieved simply by decrying discrimination or even by decreeing that discrimination cease; rather, it proceeds on the assumption that, unless these are accompanied by positive or "affirmative" steps to speed the elimination of the stubborn vestiges of discrimination, this noxious condition will continue to feed on itself, and the goal of equal opportunity will remain beyond reach.

"Affirmative action", therefore, contemplates measures such as the reinstatement or upgrading of those who have been discriminated against, the recruitment of members of disadvantaged groups and the opening up of opportunities for attaining vocational skills that will enable them to compete in the labor market. While, at times, impatience with the pace of acceptable methods has led some to resort to quotas and programs of reverse discrimination, concepts quite different from equal opportunity (cf. Alevy v. Downstate Med. Center, 39 N.Y.2d 326, 336-337, 384 N.Y.S.2d 82, 90-91, 348 N.E.2d 537, 545-546), it is not to be assumed that a program of affirmative action necessarily encompasses preferential treatment (see Matter of Broidrick v. Lindsay, 39 N.Y.2d 641, 646-648, 385 N.Y.S.2d 265, 267-268, 350 N.E.2d 595, 597-598, Supra ). The rules and regulations in Broidrick were properly struck down because they did. The executive actions here do not and, thus are not vulnerable to such attack.

On analysis, in their own way, the executive actions before us today were but modest attempts to deal with existing inequalities of opportunity. Each recognized that discrimination in employment on the part of public contractors adversely affects the costs of public works by, among other things, decreasing the pool of available labor. Both were directed against what had been found to be a "specific" pattern of discrimination infesting the building and construction industry (Matter of State Comm. for Human Rights v. Farrell, 43 Misc.2d 958, 960, 252 N.Y.S.2d 649, 652; see Fullilove v. Kreps, 584 F.2d 600, 606, cert. granted --- U.S. ----, 99 S.Ct. 2403, 60 L.Ed.2d 1064; Equal Employment Opportunity Comm. v. Local 638, 532 F.2d 821, 2nd Cir., affd. as mod. 565 F.2d 31, 2nd Cir.; Rios v. Enterprise Assn. Steamfitters, Local No. 638, 501 F.2d 622, 2nd Cir.). Both had as their aim simply to make the industry more responsive to its obligations as regards the employment rights of minority and female workers.

For his part, the Governor acted pursuant to his constitutional authority (N.Y.Const., art. IV, § 3) to see to the faithful execution of our laws and to specify terms and conditions of contracts entered into by the State. In this tenor, Executive Order No. 45 required that all State contracts include a provision incorporating a program that would insure that employees or applicants "are afforded equal employment opportunities." To allow the contractors flexibility, the order did not spell out precise requirements, except to indicate the program was to be one "to achieve goals and timetables designed to reflect adequate utilization of minority group persons and women". Instead, it set up an Office of State Contract Compliance (OSCC) within the State Division of Human Rights, the agency already charged by the Legislature with the implementation of antidiscrimination laws. The OSCC was commissioned to develop and enforce appropriate contract terms designed to effectuate the order (9 NYCRR 3.45).

No terms had been issued by the OSCC by the time the petitioners, as representatives of employers and unions in the construction industry, commenced this article 78 proceeding. There was, therefore, no reason to assume that, when issued, the "goals" and "timetables" would not be ones directed at the undisputably permissible goal of attracting qualified minority applicants, rather than granting some form of blunderbuss preferential treatment to minorities and women in the potential labor market. In particular, especially in the light of the Broidrick guidelines, nothing compelled the conclusion that a fixed percentage or quota formula would be imposed.

As for the city, the rules and regulations here challenged were promulgated for the Mayor by his city administrator. Their issuance was authorized by Mayoral Executive Order No. 71, which, undisturbed by Broidrick and with seeming uncontestability, declared it the policy of the city to insure that employment of qualified persons on municipal contracts be free from discrimination on account of race, creed, color or national origin (and, by later amendment, of sex and age). The rules at issue replaced an earlier set that had been struck down by Broidrick as an unconstitutional application of Order No. 71 because they had required contractors to commit themselves to employ specified percentages of minority...