State Division of Human Rights on Complaint of Callery v. New York City Dept. of Parks and Recreation

CourtNew York Supreme Court Appellate Division
Writing for the CourtBefore MARKEWICH; PER CURIAM; All concur, except KUPFERMAN; KUPFERMAN
Parties, 4 Fair Empl.Prac.Cas. (BNA) 177, 4 Empl. Prac. Dec. P 7593 STATE DIVISION OF HUMAN RIGHTS, on the Complaint of Candy CALLERY, Complainant, v. NEW YORK CITY DEPARTMENT OF PARKS AND RECREATION, Respondent.
Decision Date09 December 1971

Page 640

326 N.Y.S.2d 640
38 A.D.2d 25, 4 Fair Empl.Prac.Cas. (BNA) 177,
4 Empl. Prac. Dec. P 7593
STATE DIVISION OF HUMAN RIGHTS, on the Complaint of Candy
CALLERY, Complainant,
v.
NEW YORK CITY DEPARTMENT OF PARKS AND RECREATION, Respondent.
Supreme Court, Appellate Division, First Department.
Dec. 9, 1971.

Howard Hertzberg, New York City, of counsel (Henry Spitz, New York City, attorney), for State Division of Human Rights.

J. Lee Rankin, Corporation Counsel (Stanley Buchsbaum and Jesse J. Fine, New York City, on the brief), for petitioner.

Before MARKEWICH, J.P., and KUPFERMAN, MURPHY, McNALLY and TILZER, JJ.

PER CURIAM:

Petitioner, the New York City Department of Parks and Recreation brings this proceeding pursuant to section 298 of the Executive Law,

Page 641

to vacate and set aside an order [38 A.D.2d 26] of the State Division of Human Rights made on March 27, 1971 as modified by the Human Rights Appeal Board by order dated May 21, 1971.

This proceeding was initiated upon complaint of Candy Callery, a female, who was denied employment as a lifeguard, because of her failure to meet the minimum height and weight requirements set by the petitioner. Miss Callery is 5 feet 6 inches and weighs 125 pounds, while the minimum requirement for the position of lifeguard requires one to be at least 5 feet 7 inches and at least 135 pounds in weight.

After a hearing, the State Division of Human Rights issued an order, which was modified by the Appeal Board. The following are the provisions of the order of the Division of Human Rights, with the matter in brackets representing those provisions which were deleted by the Appeal Board in its final order which is under review herein:

'ORDERED, that Respondent New York City Department of Parks and Recreation, their agents, representatives, employees, successors and assigns shall take the following affirmative action which will effectuate the purposes of the Human Rights Law:

(1. Respondent shall for the next two swimming seasons after the effective date of this Order discontinue its height and weight requirements.)

2. Respondent (during said two seasons) shall test and train Complainant and any other candidate to ascertain whether or not they meet the requisite skill and efficiency for being a lifeguard, consistent with due concern for public safety.

3. If Complainant qualifies for and successfully completes a lifeguard training course, then Respondent shall offer her employment at a swimming facility under Respondent's jurisdiction for the first summer season after completion of the training course.

4. Respondent shall offer employment to successful applicants without regard to sex.

(5. At the end of said two seasons, if Respondent shall have found it essential to establish minimum height and weight standards for the job of lifeguard, application for approval of such standards shall be made to the Division.)'

The above order was made only after it had been determined that the height and weight standards tended to exclude the vast majority of women from qualifying for the subject position. In point of fact, the statistics established that 90% Of women in the age category of 17 through 34 do not meet the minimum height while 60% Do not meet the minimum weight. In contrast, more than 80% Of men in that age category meet the [38 A.D.2d 27] minimum weight standard and 70% Meet the minimum height standard. The effect clearly is to exclude virtually all women and the position of lifeguard, therefore, is open essentially to men.

Page 642

The order of the Appeals Board also rested upon the finding that petitioner did not produce any substantial evidence 'which would show whether the required height and weight measurements set by the (Petitioner) are essential to the proper performance of the duty of lifeguard at New York City beaches and pools.' This finding was amply supported by the evidence. The testimony at the hearing demonstrated that the weight and height standards were adopted without any real reference to the job duties and requirements and without any testing procedures. In fact, the testimony showed that persons both shorter and lighter might be able to perform the job duties as well as those who met the physical standards. And it is to be noted that even upon meeting the height and weight standards the petitioner required that individuals show 'that they have the strength.' Further, it would appear that while several reasons were given for adoption of the particular height and weight standards, the real basis for those standards was just that it was felt that there had to be some line of demarcation. This reason is patently insufficient where the result is the exclusion of the majority of women from employment.

The order of the Appeal Board did not preclude petitioner from establishing any height and weight standards reasonably related to the job duties but in effect merely required petitioner to test and train candidates to ascertain whether they met the requisite skill and efficiency for the job. Indeed, the Appeal Board deleted the ordering provision of the Division of Human Rights which provided that '(Petitioner) shall for the next two swimming seasons . . . discontinue its height and weight requirements.' In the decision of the...

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13 practice notes
  • Smith v. Troyan, Nos. 73-2226
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • July 3, 1975
    ...on the basis of state statutes. See, e. g., New York State Div. of Human Rights v. New York City Dep't of Parks & Recreation, 38 A.D.2d 25, 326 N.Y.S.2d 640 (1971) (municipal lifeguard), New York State Div. of Human Rights v. New York-Pennsylvania Professional Baseball League, 36 A.D.2d......
  • In re Cohen, Bankruptcy No. 87-30122
    • United States
    • United States Bankruptcy Courts. Second Circuit. U.S. Bankruptcy Court — Southern District of New York
    • September 30, 1988
    ...were adopted with the intent to discriminate." State Division of Human Rights v. New York City Department of Parks and Recreation, 38 A.D.2d 25, 326 N.Y.S.2d 640, 642-43 (1971); CUNY-HosTOS Community College v. State Human Rights Appeal Board, 59 N.Y.2d 69, 463 N.Y.S.2d 173, 178-79, 44......
  • State Division of Human Rights on Complaint of Freeman v. Xerox Corp.
    • United States
    • New York Supreme Court Appellate Division
    • July 18, 1975
    ...N.Y.S.2d 788, affd. 29 N.Y.2d 921, 329 N.Y.S.2d 99, 279 N.E.2d 856; State Div. of Human Rights v. N.Y.C. Dept. of Parks & Recreation, 38 A.D.2d 25, 326 N.Y.S.2d 640 (involving arbitrary physical standards); Board of Educ. of Union Free School Dist. No. 2, East Williston, Town of North H......
  • Board of Ed. of Union Free School Dist. No. 2, East Williston, Town of North Hempstead, Nassau County v. New York State Division of Human Rights
    • United States
    • New York Supreme Court Appellate Division
    • June 25, 1973
    ...the exceptional treatment of the individual on the employer (State Div. of Human Rights v. New York City Dept. of Parks & Recreation, 38 A.D.2d 25, 28, 326 N.Y.S.2d 640, The true issue before us then is whether the petitioner's policy has a reasonable foundation in requiring a teacher t......
  • Request a trial to view additional results
13 cases
  • Smith v. Troyan, Nos. 73-2226
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • July 3, 1975
    ...on the basis of state statutes. See, e. g., New York State Div. of Human Rights v. New York City Dep't of Parks & Recreation, 38 A.D.2d 25, 326 N.Y.S.2d 640 (1971) (municipal lifeguard), New York State Div. of Human Rights v. New York-Pennsylvania Professional Baseball League, 36 A.D.2d......
  • In re Cohen, Bankruptcy No. 87-30122
    • United States
    • United States Bankruptcy Courts. Second Circuit. U.S. Bankruptcy Court — Southern District of New York
    • September 30, 1988
    ...were adopted with the intent to discriminate." State Division of Human Rights v. New York City Department of Parks and Recreation, 38 A.D.2d 25, 326 N.Y.S.2d 640, 642-43 (1971); CUNY-HosTOS Community College v. State Human Rights Appeal Board, 59 N.Y.2d 69, 463 N.Y.S.2d 173, 178-79, 44......
  • State Division of Human Rights on Complaint of Freeman v. Xerox Corp.
    • United States
    • New York Supreme Court Appellate Division
    • July 18, 1975
    ...N.Y.S.2d 788, affd. 29 N.Y.2d 921, 329 N.Y.S.2d 99, 279 N.E.2d 856; State Div. of Human Rights v. N.Y.C. Dept. of Parks & Recreation, 38 A.D.2d 25, 326 N.Y.S.2d 640 (involving arbitrary physical standards); Board of Educ. of Union Free School Dist. No. 2, East Williston, Town of North H......
  • Board of Ed. of Union Free School Dist. No. 2, East Williston, Town of North Hempstead, Nassau County v. New York State Division of Human Rights
    • United States
    • New York Supreme Court Appellate Division
    • June 25, 1973
    ...the exceptional treatment of the individual on the employer (State Div. of Human Rights v. New York City Dept. of Parks & Recreation, 38 A.D.2d 25, 28, 326 N.Y.S.2d 640, The true issue before us then is whether the petitioner's policy has a reasonable foundation in requiring a teacher t......
  • Request a trial to view additional results

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