Imperial Diner, Inc. v. State Human Rights Appeal Bd.

• Decision Date: 22 December 1980
• Citation: 52 N.Y.2d 72,417 N.E.2d 525,436 N.Y.S.2d 231
• Parties: , 417 N.E.2d 525, 28 Fair Empl.Prac.Cas. (BNA) 1458 In the Matter of IMPERIAL DINER, INC., et al., Respondents, v. STATE HUMAN RIGHTS APPEAL BOARD, Respondent, and State Division of Human Rights on the Complaint of Eleanor F. Rose, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 231

436 N.Y.S.2d 231

52 N.Y.2d 72, 417 N.E.2d 525, 28 Fair

Empl.Prac.Cas. (BNA) 1458

In the Matter of IMPERIAL DINER, INC., et al., Respondents, v. STATE HUMAN RIGHTS APPEAL BOARD, Respondent, and State Division of Human Rights on the Complaint of Eleanor

F. Rose, Appellant.

Court of Appeals of New York.

Dec. 22, 1980.

Alan J. Saks and Ann Thacher Anderson, New York City, for appellant

David I. Korngut, New York City, for Imperial Diner, Inc., and another, respondents.

OPINION OF THE COURT

WACHTLER, Judge.

The State Division of Human Rights has found the petitioners, Imperial Diner and its president, discriminated against an employee on the basis of her religion or creed and under the circumstances, compelled her to quit her job. The Appellate Division, 75 A.D.2d 594, 426 N.Y.S.2d 804, annulled the determination on the ground that it was not supported by substantial evidence of discrimination. The State Division appeals.

The complainant is a mother of three, who in the fall of 1976 was attending graduate school and working weekends as a waitress at the Imperial Diner. The diner is owned by three individuals one of whom operates it on a daily basis and also serves as its president. On Saturday, October 24, the complainant worked behind the counter, which is considered less desirable than a table station. When she was again assigned to the counter on Sunday, she complained and brought the matter to the attention of the president, who apparently did nothing. However, the head waitress decided to reassign her to a table station.

Later, while the complainant was delivering an order to the kitchen, she saw the president and, thinking he was responsible for the reassignment, thanked him. He responded with an obscene antisemitic remark to the effect that the complainant thought she was something special because she was Jewish, "Just like all the other f ing Jewish broads around here." When she expressed shock and disbelief her employer told her that she had heard correctly; that all the "f ing Jewish women" at the diner "think they are something special and deserve more than the others." When she requested an apology he ignored her. At that point she left the diner and went home.

A few hours later she told one of the other owners what had occurred. He said that she should return to work and not be upset because the president was probably just in a bad mood. She agreed to stay on if the president would apologize in front of those who had heard the remarks. Otherwise, she noted, she felt that she might be subject to similar abuse in the future.

Complainant saw the president again, several days later, when she returned to collect her pay. At first he accused her of telling lies about him, but when she protested, he asked her to return to work and forget the whole thing. However, when she requested an apology, he replied, "Never".

After a hearing before the State Human Rights Division, the commissioner found that complainant "was compelled to leave her job because of the ethnic obscenities hurled at her by her employer." The commissioner emphasized the fact that the employer had repeatedly refused to apologize for the remarks. He directed that the petitioners apologize in writing, offer to reinstate complainant with back pay, together with $500 in damages for the "shock, humiliation and outrage" she experienced. The determination was affirmed by the Human Rights Appeal Board, with one dissent concerning the award of back pay.

Petitioners then commenced this proceeding in the Appellate Division seeking to have the determination annulled (see Executive Law, § 298). The commissioner cross-moved for an enforcement order. The Appellate Division held that the determination was not supported by substantial evidence because "the record is devoid of evidence showing a systematic exclusion or restriction, or a generalized pattern of unlawful discrimination, or any evidence of persistent religious or other unlawful discrimination directed at the complainant." Thus the petition was granted and the determination annulled.

By statute, it is an unlawful discriminatory practice for an employer to discriminate against an individual "in compensation or in terms, conditions or privileges of employment" or to discharge an individual on the basis, among others, of race or creed (Executive Law, § 296, subd. 1, par. (a)). In considering whether the commissioner's determination, that an employer has engaged in an unlawful discriminatory practice, is supported by substantial evidence, we have noted that "three underlying principles should be borne in mind" (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). First, the statute, by its terms should be "construed liberally for the accomplishment of the purposes thereof" (Executive Law, § 300). Secondly, the commissioner is primarily responsible for administering the law and to that end has been granted broad powers to eliminate discriminatory practices (Batavia Lodge No. 196, Loyal Order of Moose v. New York State Div. of Human Rights, 35 N.Y.2d 143, 146-147, 359 N.Y.S.2d 25, 316 N.E.2d 318). Thirdly, one intent on discriminating "cannot be expected to declare or announce his purpose. Far more likely is it that he will pursue his discriminatory practices in ways that are devious, by methods subtle and elusive for we deal with an area in which 'subtleties of conduct * * * play no small part' " (Matter of Holland v. Edwards, 307 N.Y. 38, 45, 119 N.E.2d 581).

As far as subtlety is concerned the case now before us is startling because here the employer's contempt for complainant, and his other female employees of her religion or creed was proclaimed crudely and openly, not only to her but to all within her hearing. This type of vilification is humiliating, not only when it is done wholesale, but also and perhaps especially, when it is directed at a lone individual in an isolated incident. The statute prohibits discrimination, and not just repeated discriminatory acts (see e. g., Hudson Tr. Lines v. State Human Rights Appeal Bd., 47 N.Y.2d 971, 419 N.Y.S.2d 960, 393 N.E.2d 1033; Matter of Pace Coll. v. Commission on Human Rights of City of N. Y., 38 N.Y.2d 28, 377 N.Y.S.2d 471, 339 N.E.2d 880). Thus, on the basis of the complainant's testimony alone, that her employer reviled her religion or creed in a matter related to her working conditions, the commissioner could find that petitioners engaged in an unlawful discriminatory employment practice which should be redressed. He did not have to also find that this was a regular practice, nor...