State Division of Human Rights v. Kilian Mfg. Corp.

• Citation: 360 N.Y.S.2d 603,35 N.Y.2d 201,318 N.E.2d 770
• Parties: , 318 N.E.2d 770, 8 Fair Empl.Prac.Cas. (BNA) 1020, 8 Empl. Prac. Dec. P 9840 STATE DIVISION OF HUMAN RIGHTS, Appellant, v. KILIAN MANUFACTURING CORPORATION, Respondent.
• Decision Date: 07 October 1974
• Court: New York Court of Appeals

Page 603

360 N.Y.S.2d 603

35 N.Y.2d 201, 318 N.E.2d 770, 8 Fair

Empl.Prac.Cas. (BNA) 1020,

8 Empl. Prac. Dec. P 9840

STATE DIVISION OF HUMAN RIGHTS, Appellant, v. KILIAN MANUFACTURING CORPORATION, Respondent.

Court of Appeals of New York.

Oct. 7, 1974.

Lawrence Kunin, Croton-on-Hudson, Henry Spitz and Howard Hertzberg, New York City, for appellant.

Henry S. Fraser, Syracuse, for respondent.

Louis J. Lefkowitz, Atty. Gen. (Samuel A. Hirshowitz, George D. Zuckerman and Dominick J. Tuminaro, New York City, of counsel), amicus curiae.

Adrian P. Burke, Corp. Counsel, New York City (Beverly Gross and Frances Loren, New York City, of counsel), for the City of New York, amicus curiae.

William A. Carey, Joseph T. Eddins, Jr., Beatrice Rosenberg, Charles L. Reischel and Linda Colvard Dorian, Washington, D.C., for the United States Equal Employment Opportunity Commission, amicus curiae.

STEVENS, Judge.

In a complaint filed in 1970 by respondent-appellant, State Division of Human Rights (the Division), petitioner-respondent, Kilian Munufacturing Corporation (Kilian), was charged with an unlawful discriminatory practice relating to employment. Following a hearing, the Division found that Kilian's hiring practices were discriminatory in violation of section 296 of the Human Rights Law (Executive Law, art. 15, Consol.Laws, c. 18). The State Human Rights Appeal Board affirmed. Kilian commenced this proceeding in the Appellate Division which reversed the Appeal Board and the Division appealed, 42 A.D.2d 391, 348 N.Y.S.2d 428.

The facts are not in dispute. In a period approximating 50 years since its establishment Kilian had never employed a Black or Spanish-surnamed person. It recruited its work force, which experienced a rather rapid turnover, 85% By referrals from its employees and 15% By 'walk-ins', i.e., persons walking in from the street and filing job applications. The work was largely unskilled with no special educational requirement and such training as was necessary was usually on the job training.

Statistics indicated that, as of the time of the hearing, there was a 10.7% Black population in the area where the majority of Kilian's employees resided. Note was taken of the fact that between the filing of the complaint and the holding of the hearing on April 25, 1972, two Blacks and one Spanish-surnamed person were employed by Kilian in a total work force of 297.

The Division on its own motion initiated the investigation and the complaint as it had the power to do (Human Rights Law, § 295, subd. 6, par. (b)). At the public hearing the Division not only introduced evidence as to the fact pattern of hiring, but presented statistical evidence as to the potential reservoir of Blacks resident in the area which was the largest source of Kilian's employment.

Following the public hearing, the hearing commissioner made certain findings of fact as to Kilian's source of recruitment, the nature of Kilian's operations, etc., as heretofore set forth, and found also that Kilian had never advertised for employees, nor had it ever utilized any employment organization to recruit employees. He found that Kilian's policy of recruitment had the effect of perpetuating an all-white work force which barred or excluded Black and Spanish-surnamed persons from equal opportunity to obtain employment with Kilian. The findings were affirmed and adopted by the Division. Kilian was ordered, Inter alia, to cease and desist from barring or refusing to hire any persons because of race, color or national origin, and to take certain affirmative action to broaden its source of recruitment. The purpose was to change a pattern of recruitment which had an effect similar to that which would have been achieved if unlawful discrimination had been intended.

The question at issue is whether there is substantial evidence to sustain a finding of discriminatory action by Kilian. Or, to phrase it somewhat differently, is statistical evidence in conjunction with a hiring system which has the effect, even without evidence of intention, to exclude Black and Spanish- persons sufficient to establish discriminatory action within the meaning of the statute?

Admittedly, at the time the pattern of employment was established there were no laws which affirmatively imposed an obligation of equal employment or even the dissemination of information regarding equal employment opportunities. Thus, Kilian was not violating any law prior to the enactment of article 12, found in chapter 118 of the Laws of 1945, the predecessor of present article 15 of the Executive Law. With the advent of World War II, the need for fullest utilization of available manpower assumed the highest priority, especially in defense industries. Citadels of exclusivity based on discrimination because of race, creed, color or national origin began to crumble under the force of new ideas and the impact of an emerging philosophy of equal opportunity for all. New York assumed the lead in this field with the result that article 12, above referred to, was enacted in 1945 and added a new dimension in the area of human rights.

Section 296 of the Human Rights Law (Executive Law, art. 15) in defining unlawful discriminatory practices, insofar as here pertinent, 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.'

Article 15 of the Executive Law is deemed 'an exercise of the police power of the state for the protection of the public welfare, health and peace of the people of this state, and in fulfillment of the provisions of the constitution of this state concerning civil rights. ¹' (Human Rights Law, § 290, subd. 2.) The Legislature recognized that it is a State responsibility to assure, Inter alia, that every individual be afforded an equal opportunity to enjoy a full and productive life (Human Rights Law, § 290, subd. 3). The equal opportunity for employment is basic to the equal opportunity to enjoy a full and productive life unless the individual fall into that somewhat rare category where he or she is possessed of independent means.

It should be pointed out that the figure of 10.7% Blacks in the area of Kilian's recruitment source is not a figure which has been constant throughout Kilian's existence. At the time that Kilian was established, 50 years ago, the figure was approximately 2%, the percentage increasing over the years until at the time of the complaint it amounted to 10.7%. Since Kilian's labor force has not remained constant, being subject to fluctuation in numbers as well as turnover, the charge essentially is that Kilian's hiring practices presently result in an underutilization of Blacks and fail to make available to Blacks employment opportunities that exist or are available. Thus, the system is inherently self-perpetuating so as to maintain or tend to maintain an all-white work force.

Prior to the filing of the complaint, an investigation was made and a report filed analyzing Kilian's employment practices. The report is summarized in the complaint and there is no doubt that Kilian understood the charge and the import of the material upon which the charge was founded.

A system of employment which at a given time, as in the early years of Kilian's existence, is not discriminatory may, in effect, become so over a period of time because of changed circumstances. Nor does a finding of a discriminatory practice necessarily import a willful and actual intent to evade the law. A permitted practice can result in an undesirable condition which conflicts with the objectives of the Human Rights Law. In the absence of conduct from which willful intent might be presumed, the question rather is whether an employer knows or should have known the ultimate result or effect of its hiring practice. It is both unrealistic and impractical to assume in today's world that the persistence of an all-white labor force, the nature of whose work and duties are unskilled, in an area where the job or employment potential is 10.7% Black, does not result in a denial of equal job opportunities. (See United States v. Ironworkers Local 86, 315 F.Supp. 1202, affd. 443 F.2d 544, cert. den. 404 U.S. 984, 92 S.Ct. 447, 30 L.Ed.2d 367.) The crucial test is whether there is established in practice a pattern of employment policy which encourages or permits conduct which runs counter to the expressed purpose of the statute. The order entertained here does not direct the hiring of a Black or Spanish-surnamed person nor does it establish a quota of employment for them. It cannot be too greatly emphasized that the order only required that information concerning job opportunities be disseminated by means reasonably calculated to reach the Black job market so that persons so inclined may file the necessary application. Twenty-six years without the interviewing of more than a single Black job applicant (if that), given the location of Kilian's business and the existence of its employee recruitment policy, permits a reasonable inference even by the uninitiate that its policy runs...