New York State Division of Human Rights v. New York-Pennsylvania Professional Baseball League
| Decision Date | 27 April 1971 |
| Docket Number | YORK-PENNSYLVANIA |
| Citation | 320 N.Y.S.2d 788,36 A.D.2d 364 |
| Parties | , 3 Fair Empl.Prac.Cas. (BNA) 483, 3 Empl. Prac. Dec. P 8208 NEW YORK STATE DIVISION OF HUMAN RIGHTS on the complaint of Bernice Gera, Respondent, v. NEWPROFESSIONAL BASEBALL LEAGUE and Vincent M. McNamara, President, and the National Association of Professional Baseball Leagues andPhillip Piton, Petitioners. |
| Court | New York Supreme Court — Appellate Division |
Donovan, Leisure, Newton & Irvine, New York City, for petitioners National Ass'n of Professional Baseball Leagues and Phillip Piton (George S. Leisure, Jr., New York City, of counsel).
Robert E. Walsh, Buffalo, for New York-Pennsylvania Professional Baseball League and Vincent M. McNamara (George S. Leisure, Jr., New York City, of counsel).
Mario Biaggi, New York City, for respondent.
Henry Spitz, New York City, for State Division of Human Rights (Alan J. Saks, New York City, of counsel).
Before GOLDMAN, P.J., and MARSH, WITMER, GABRIELLI and CARDAMONE, JJ.
Petitioners, New York-Pennsylvania Professional Baseball League and Vincent McNamara, its President, and the National Association of Professional Baseball Leagues and Phillip Piton, its President, in a proceeding pursuant to section 298 Executive Law, seek review and reversal of the decisions and orders entered by the Commissioner of the State Division of Human Rights and the Human Rights Appeal Board on the complaint of Bernice Gera. The orders of the Commissioner, affirmed with slight modification by the Appeal Board, determined, after a hearing, that petitioners had barred complainant from employment as an umpire because of her sex in violation of Sec. 296, Executive Law and directed petitioners to cease and desist such unlawful discriminatory practice and to take certain affirmative action with respect to New York teams and leagues, including the establishment of new physical standards which shall have a reasonable relation to the requirements of the duties of umpires and which do not discriminate against women as a group and other groups having smaller average stature than American men. The further direction was made that petitioners reconsider complainant's application for employment as an umpire with reference to such new physical standards.
The record on which the decision and orders under review were based reveals that the complainant, a female, was born June 14, 1931, is 5 2 in height and weighs 129 pounds. She had played on her high school softball team, coached Little League teams and umpired games sponsored by the American Legion, Catholic Youth Organization, YMCA and the New York Police Department as well as at the Bridgeton, N.J. Semi-Professional Tournament and the National Baseball Congress, a league composed of Semi-Professional teams in Wichita, Kansas. Early in 1967, using the first name 'Bernie' and concealing her sex, she made an application for admission to the Al Somers School for umpires setting forth her age as 35, weight as 144 pounds and height as 5 3 . The Al Somers School was approved, supervised and subsidized by the Baseball Umpire Development Program, which was organized under major league sponsorship in December 1964, five months after the enactment of the Federal Civil Rights Act, to establish standards for minor league umpires. Umpires hired by the various minor league presidents, subject to the approval of the President of the National Association, were required to be approved by the Baseball Umpire Development Program in order to secure payment of major league subsidies. The Baseball Umpire Development Program established as qualifications for umpires an age limit of 35, minimum height of 5 10 , minimum weight of 170 pounds, graduation from high school and from an approved umpire school.
Despite her obvious lack of physical qualifications required by the Umpire Development Program, the Somers School upon receiving complainant's application advised her by letter that she would be welcome to join the next class the following year. Upon telephoning the school to advise them of her sex she was told by Somers that since she had raised an important policy matter it would have to be discussed with the Administrator of the Baseball Umpire Development Program and she would be further advised. No additional acknowledgment was received concerning her application to the Somers School.
In the summer of 1968 complainant wrote the petitioner, McNamara, President of the New York-Pennsylvania League, requesting an application for an umpiring position without setting forth her qualifications. In response McNamara outlined various objections to hiring a female umpire and concluded:
'It is our professional opinion that it would be unwise to expose you or any other lady to situations such as those stated previously above.'
Subsequently complainant instituted a proceeding against the New York-Pennslvania League and McNamara. While the proceeding was pending McNamara mailed an umpire questionnaire to complainant which she returned properly listing her age, height and weight. McNamara thereupon mailed a contract to her which she signed and returned and which he transmitted with his signature to petitioner Piton as President of the National Association for his approval, stating however to Piton, that he tendered the contract even though he did not consider complainant qualified, because of his having been importuned by the complainant and the Human Rights Commission. He said further that he felt that he had to execute the contract despite her lack of qualifications knowing that Piton would have to make the final decision. Piton disapproved the contract advising complainant that the National Association was guided by the standards established by the Umpire Development Program having to do with height, weight and age and that based upon her failure 'to meet the physical requirements for admission to the Umpire Development Program and for employment by the National Association Leagues I have no alternative but to disapprove and invalidate your proposed contract.'
While as President of the National Association, Piton was required to aprove all player and umpire contracts in the minor leagues, he testified that he wasn't sure he knew of the required standards as to height, weight and age prior to the summer of 1967 when complainant first made known her interest in umpiring in professional baseball.
Sec. 296, Executive Law provides:
'1. It shall be an unlawful discriminatory practice:
(a) For an employer, because of the age, race, creed, color, national origin or sex of any individual, to refuse to hire or employ or to bar or to discharge from employment such individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment. * * *
6. 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.'
Whatever policy organized baseball may conceive to be in its best interests must yield to a public policy established in the interests of the whole of society as evidence by the statutory law of the State.
Petitioners contend that the 'bona fide occupational qualification' exception to the law (Executive Law § 296, subd. 1(d) and Civil Rights Act of 1964, § 703, subd. (e); tit. 42 U.S.C. § 2000e-2(e) is applicable herein and permits restricting the hiring of umpires to those of the male sex. This contention is unsound. Recent court decisions have required that this exception be affirmatively proved by the party claiming it. (Weeks v. Southern Bell Telephone & Telegraph Co., 5 Cir., 408 F.2d 228; Bowe v. Colgate-Palmolive Co., 7 Cir., 416 F.2d 711; Cheatwood v. South Central Bell Telephone & Telegraph Co., D.C., 303 F.Supp. 754; Richards v. Griffith Rubber Mills, D.C., 300 F.Supp. 338). The courts have given this provision a narrow construction. In Weeks v. Southern Bell Telephone & Telegraph Co., supra, the Court of Appeals for the Fifth Circuit stated at page 235 of 408 F.2d:
'(W)e hold that in order to rely on the bona fide occupational qualification exception an employer has the burden of proving that he had reasonable cause to believe, that is, a factual basis for believing, that all or substantially all women would be unable to perform safely and efficiently the duties of the job involved.'
Petitioners have not introduced evidence to support a factual basis for belief that women are not qualified for the job of a professional baseball umpire. Essentially the only evidence on this point is that the job would require some physical strain, travel and loss of weight, with a possibility of some physical injury. In the Weeks case, supra, the court stated that characterizing a job as 'strenuous' does not meet the burden required to show a bona fide occupational qualification and few jobs of a strenuous character do not involve some risk of physical injury.
Further support for the proposition that the bona fide occupational qualification exception does not apply to the position in question is found in the guidelines set down by the Equal Employment Opportunity Commission construing this provision. (See 16 C.F.R. Sec. 1604.1(a)). The courts have held that such guidelines are entitled to 'great deference'. (Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 13 L.Ed.2d 616; Phillips v. Martin Marietta Corp., 400 U.S. 542, 91 S.Ct. 496, 27 L.Ed.2d 613 (January 25, 1971) (concurring opinion, Marshall, J.); Weeks v. Southern Bell Telephone & Telegraph Co., supra). Those guidelines have construed the bona fide occupational qualification exception very narrowly. They reject the proposition that an employer can refuse 'to hire an individual based on stereotyped characterizations of the sexes.' (29 C.F.R. Sec. 1604.1(a)(ii)). According to the Commission the exception is primarily to apply 'where it is necessary for...
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