State Division of Human Rights v. Employers-Commercial Union Ins. Group

• Citation: 307 N.Y.S.2d 232,33 A.D.2d 273
• Decision Date: 02 February 1970
• Docket Number: EMPLOYERS-COMMERCIAL
• Court: New York Supreme Court — Appellate Division
• Parties: , 2 Fair Empl.Prac.Cas. (BNA) 435, 2 Empl. Prac. Dec. P 10,168, 62 Lab.Cas. P 9397 Application of the STATE DIVISION OF HUMAN RIGHTS, Petitioner, pursuant to Executive Law, § 298, to enforce an order of said Division v. TheUNION INSURANCE GROUP and Francis De Lorme, Respondents.

Page 232

307 N.Y.S.2d 232

33 A.D.2d 273, 2 Fair Empl.Prac.Cas. (BNA) 435,

2 Empl. Prac. Dec. P 10,168, 62 Lab.Cas. P 9397

Application of the STATE DIVISION OF HUMAN RIGHTS Petitioner, pursuant to Executive Law, § 298, to enforce an order of said Division v. The EMPLOYERS-COMMERCIAL UNION INSURANCE GROUP and Francis De Lorme, Respondents.

Supreme Court, Appellate Division, First Department.

Feb. 2, 1970.

Edward Alan Shure, New York City, of counsel (Shure & Bruder, New York City, attorneys) for respondents.

Alan J. Saks (Henry Spitz, General Counsel), New York City, for petitioner.

Before TILZER, J.P., and McGIVERN, MARKEWICH, NUNEZ, and McNALLY, JJ.

McNALLY, Justice.

The petitioner, State Division of Human Rights, applies for an order pursuant to § 298 of the Executive Law (Article 15 of the Human Rights Law) to enforce its order dated October 22, 1969 which imposes damages of $1,250 and directs the respondents to cease and desist from certain discriminatory practices against any individual by reason of race, color, creed or national origin, and further desist from discriminating against any individual in the terms, conditions and compensation and all privileges of employment because of race, color, creed or national origin, and compels the service of certain notices.

The order dated October 22, 1969 was granted on the complaint of a Negro who claimed unlawful discriminatory practices relating to employment by reason of the complainant's color. There was no appeal from the order and the time to appeal has expired. Hence, there is no question as to the correctness or validity of the commission's determination. The order required the following:

1. That complainant be advised in writing of the first available Insurance Claims Adjuster Trainee position (property damage) in respondents' office.

2. That further, the respondents shall require no further references from the complainant, and if he accepts the position, respondents shall not cause him any discomfort by reason of his previous testimony.

3. Further, that the respondents shall forward a copy of the offer to the State Division of Human Rights.

4. That complainant be allowed seven days from the receipt of the offer to decide whether to decline or accept.

5. Subject to offering complainant employment for two years from the final date of the order, the respondents are compelled in writing to notify the State Division of Human Rights and the New York State Employment Service of the availability of any Insurance Claims Adjuster Trainee (property damage) position in their office and shall allow the New York State Employment Service ten days in which to refer interested applications.

6. Respondents shall interview and consider all referred applicants on the same basis as has heretofore been their practice with all applicants, and such applicants shall be accepted on the same terms and conditions as all other applicants.

7. Respondents shall send letters to all recruitment services, including employment agencies, citing respondents' policy of non-discrimination in employment and encouraging these agencies to refer applicants to respondents without regard to race, creed, color or national origin. All newspaper advertisements placed to attract applicants for employment shall include a statement to the effect respondents are equal opportunity employers.

8. Respondents shall make available to the State Division of Human Rights at reasonable times and places specified such documents from which the petitioner may ascertain compliance.

9. Respondents shall place in a well-lighted conspicuous place the regulatory employment poster of the State Division of Human Rights.

Respondents have paid the damages awarded. Paragraph 10 of the petition in support of this application alleges 'This motion is not predicated upon a contention that respondent have violated these directives. Rather, it looks In futuro, seeking to assure continued compliance.'

Section 299 of the statute provides that a willful violation of an order of the petitioner constitutes a misdemeanor. Section 298, in addition, provides '* * * the division (the petitioner herein) may obtain an order of court for its enforcement and for the enforcement of any order of the commissioner which has not been appealed to the board * * *.'

The question presented is whether in the absence of an allegation of non-compliance, the petitioner may apply for an enforcement order. Petitioner cites in support of its application New York State Labor Relations Board v. Harmony Tea Shoppe, 285 App.Div. 1162, 140 N.Y.S.2d 409, aff'd 2 N.Y.2d 980, 163 N.Y.S.2d 596, 143 N.E.2d 337; State Commission for Human Rights v. Mullen, 41 Misc.2d 969, 246 N.Y.S.2d 725; State Commission Against Discrimination v. Mustachio, 56 Misc.2d 47, 288 N.Y.S.2d 20.

Harmony Tea Shoppe, supra, is not in point....