National Organization for Women v. State Division of Human Rights

• Citation: 358 N.Y.S.2d 124,34 N.Y.2d 416,314 N.E.2d 867
• Parties: , 314 N.E.2d 867, 8 Fair Empl.Prac.Cas. (BNA) 1137, 8 Empl. Prac. Dec. P 9591 NATIONAL ORGANIZATION FOR WOMEN et al., Appellants, v. STATE DIVISION OF HUMAN RIGHTS et al., Respondents.
• Decision Date: 19 June 1974
• Court: New York Court of Appeals Court of Appeals

Page 124

358 N.Y.S.2d 124

34 N.Y.2d 416, 314 N.E.2d 867, 8 Fair

Empl.Prac.Cas. (BNA) 1137,

8 Empl. Prac. Dec. P 9591

NATIONAL ORGANIZATION FOR WOMEN et al., Appellants, v. STATE DIVISION OF HUMAN RIGHTS et al., Respondents.

Court of Appeals of New York.

June 19, 1974.

Emmelyn Logan-Baldwin, Rochester, for National Organization for Women, appellant.

A. Bernard Frechtman and Joel A. Klarreich, New York City, for Association of Personnel Agencies of New York, Inc., appellant.

Eugene D. Ulterino, Rochester, for Gannett Company, Inc., respondent.

WACHTLER, Judge.

The National Organization for Women (NOW) has instituted this action pursuant to section 296 (subd. 1, par. (d)) of the Executive Law against the Gannett Publishing Company, Inc. (Garrett), a newspaper publisher. Specifically, NOW charges that to maintain separate columns ¹ in newspaper classified advertising for male employment and female employment is violative of subdivision 6 of section 296 of the Executive Law which reads: 'It shall be an unlawful discriminatory practice for any person to aid, abet, incite, compel or coerce the doing of any of the acts forbidden under this article, or to attempt to do so.'

The matter was initially brought before a field representative of the State Division of Human Rights who determined that the practice of maintaining the separate 'Male' and 'Female' help wanted columns was discriminatory. This conclusion was overruled by the Division itself where the complaint was dismissed. The dismissal was upheld by the State Human Rights Appeal Board. NOW and the Association of Personnel Agencies of New York, Inc. sought review of the Division's determination in the Appellate Division, which unanimously confirmed the determination of the Division. The appeal is before this court by our permission.

At the time of the State Division of Human Rights determination its policy with respect to separate listings was that the captions 'Help Wanted--Male' and 'Help Wanted--Female' were not discriminatory but merely for the convenience of the readers. Subsequent to its determination in this matter, it has changed that policy with regard to separate listings and Gannett no longer employs the questioned labeling of its want ads. It is urged, for this reason, that the matter is moot and that the appeal should therefore be dismissed.

This we decline to do because of the policy of our court to rule on issues of great public significance which are likely to recur, particularly when it involves broad statutory interpretations ² (see, e.g., Le Drugstore Etats Unis v. New York State Bd. of Pharmacy, 33 N.Y.2d 298, 301, 352 N.Y.S.2d 188, 190, 307 N.E.2d 249, 250; Blye v. Globe-Wernicke Realty Co., 33 N.Y.2d 15, 19, 347 N.Y.S.2d 170, 174, 300 N.E.2d 710, 713; Matter of Concord Realty Co. v. City of New York, 30 N.Y.2d 308, 333 N.Y.S.2d 161, 284 N.E.2d 148).

In addition to the mootness issue, it is urged by the respondent that NOW does not have the requisite standing to bring suit because it is not 'Any person claiming to be aggrieved by an unlawful discriminatory practice'. (Executive Law, § 297.) We disagree. It is our view that NOW has the requisite standing to bring this action (see Matter of Glen Cove Municipal Civ. Serv. Comm. v. Glen Cove NAACP, 34 A.D.2d 956, 312 N.Y.S.2d 400).

NOW is a bona fide and nationally recognized organization dedicated to eliminating discriminatory practices against women. It is clearly not what the United States Supreme Court referred to as a mere 'concerned bystander' (United States v. SCRAP, 412 U.S. 669, 687, 93 S.Ct. 2405, 37 L.Ed.2d 254). Nor is it relevant that a named plaintiff was not directly refused employment based on sex as a result of the separate listings (see Hailes v. United Air Lines, 5 Cir., 464 F.2d 1006, 1008). When legislation proscribes conduct against a class, the complaining party need not allege and specify injured parties (Pittsburgh Press Co. v. Human Relations Comm., 4 Pa.Cmwlth. 448, 287 A.2d 161, affd., 413 U.S. 376, 93 S.Ct. 2553, 37 L.Ed.2d 669). The complainaint, as here, may be a bona fide recognized organization representing that class with a specific interest in the litigation in question (see Matter of American Jewish Congress v. Carter, 19 Misc.2d 205, 190 N.Y.S.2d 218, affd., 10 A.D.2d 833, 199 N.Y.S.2d 157, affd., 9 N.Y.2d 223, 213 N.Y.S.2d 60, 173 N.E.2d 788; Matter of Glen Cove Civ. Serv. Comm. v. Glen Cove NAACP, Supra). ³

The first substantive issue that arises in this case is whether there has been an unlawful discrimination committed. An analysis of this issue must start with the recognition that unlawful discrimination against women is widespread and cannot be tolerated (accord Frontiero v. Richardson, 411 U.S. 677, 686, 93 S.Ct. 1764, 36 L.Ed.2d 583). It must also be recognized that illegal discrimination will not be announced in public but will usually be effected by 'subtle' and 'elusive' means (Matter of Holland v. Edwards, 307 N.Y. 38, 45, 119 N.E.2d 581, 584).

In the Pittsburgh Press case (Supra, 4 Cmwlth. p. 461, 287 A.2d p. 168) the newspaper under attack asserted that the separate listings were 'oriented to the interests of persons seeking employment'. In the case at bar, respondent also seeks to cloak a discrimination in the guise of an alleged service to the readers. In fact, the very disclaimer ⁴ then mandated by the Human Rights Division stated that the separate listings were used for the 'convenience of the readers'.

It may well be that more women are interested in secretarial jobs than are men. Or that more men are interested in accounting jobs than are women. However, it is often the case that a person or organization acting in a manner which genuinely intends to be descriptive becomes in effect prescriptive. A policy purporting to reflect a statistical phenomenon actually becomes a self-fulfilling prophecy which helps to generate the very presumptive foundation for its existence. The separate listings in issue here are a case in point. The discrimination against women permeates the salary structure with the result that jobs listed in the 'female' column are much lower paying than those listed in the 'male' column (see, e.g., Pittsburgh Press Co. v. Human Relations Comm., 413 U.S. 376, 393, 93 S.Ct. 2553, 37 L.Ed.2d 669, Supra). ⁵ Such sex discrimination, of course, is prohibited by section 296 of the Executive Law and those who aid or abet such unlawful discrimination are also chargeable with an unlawful discriminatory practice (Executive Law, § 296, subd. 6). In the case at bar, it is clear that Gannett may not be held culpable for directly perpetuating discrimination due to sex solely because of the manner in...