State Division of Human Rights v. Averill Park Central School Dist.
| Decision Date | 20 March 1979 |
| Citation | 46 N.Y.2d 950,415 N.Y.S.2d 405,388 N.E.2d 729 |
| Parties | , 388 N.E.2d 729, 37 Fair Empl.Prac.Cas. (BNA) 1394, 19 Empl. Prac. Dec. P 9176 In the Matter of STATE DIVISION OF HUMAN RIGHTS, Appellant, v. AVERILL PARK CENTRAL SCHOOL DISTRICT, Respondent. |
| Court | New York Court of Appeals Court of Appeals |
Order affirmed, with costs, for the reasons stated in the opinion by Mr. Justice John L. Larkin at the Appellate Division (59 A.D.2d 449, 399 N.Y.S.2d 926).
FUCHSBERG, J., dissents and votes to reverse in the following opinion in which COOKE, C. J., concurs.
We are here called upon to construe so much of the Human Rights Law as prohibits an employer from discriminating against any individual by reason of a disability unrelated to his employment (Executive Law, § 292, subd. 21). A subsidiary question, here hardly contestable, is whether, if the employment may be deemed unrelated, the State Division of Human Rights' finding of discrimination was supported by substantial evidence.
The issues come to us on appeal from an order of the Appellate Division annulling a determination of the State Human Rights Appeal Board, which affirmed an order of the Human Rights Division directing the petitioner Averill Park Central School District to offer the complainant, Leo M. Vissa, reinstatement to the position of school bus driver. For the reasons that follow, I would reverse the order of the Appellate Division and restore the order of the Human Rights Division.
Since the facts essentially undisputed pragmatically, pertinently and precisely epitomize the kind of problem the statute was enacted to meet, I start with their recital:
Vissa had been employed by the district as a bus driver for 12 years. He was always an exemplary employee. Specifically, among other things, he had never been involved in an accident, never received a traffic summons and never been the subject of unfavorable comment by students, parents or school authorities.
In August, 1974, a routine hearing test was administered to him by a school nurse, who undisputably had no special competency in auditory matters. Solely on the basis of her report, which showed a hearing loss at frequencies higher than 4,000 cycles per second, and without making any independent examination of his own, the school physician, a general practitioner without any particular training in otolaryngology, determined that, though Vissa's hearing was "adequate" at normal speech levels, he was physically unfit to perform the duties of a bus driver. 1 Thereupon the school district, without more, demoted him to a custodial job at a lower salary. This is the sum total of the evidence of the disability presented by the school authorities at the public hearing subsequently conducted by the Division of Human Rights.
In contrast, the opposing proof was overwhelming. Though Vissa's hearing had tested imperfectly for years, it had not adversely affected his work, as his performance bore out. Moreover, his condition apparently was not progressive, for only two months before the nurse's examination which the school physician chose to adopt, Vissa's hearing had been tested by the Veterans' Administration hospital and found essentially unchanged, if not improved, from what it had been four years earlier. Indeed, in the two years preceding his demotion he had passed the annual hearing tests conducted by other school nurses with flying colors. Above all, at the Human Rights hearing, three highly qualified specialists, one associated with the VA hospital that had tested Vissa's hearing in 1974 and 1975, the second the chief of otolaryngology at the VA hospital, and the third the chief research consultant to the New York League for the Hard of Hearing and a celebrated expert in the field of environmental noise, all unequivocally rejected the school doctor's conclusion. Their unimpeached testimony established that every sound a bus driver must be able to hear in order to drive safely includes low-frequency and medium-frequency components, both well within Visa's range of hearing, that there was no environmental noise Vissa would not be able to hear, that the most critical frequencies of emergency or distress signals range from 500 through 2,000 cps, that warning devices are designed to emit noise around the 500 to 2,000 and not the 4,000 range, that the tests adopted by the Federal Highway Administration for drivers of interstate buses do not go beyond 2,000 cps, that Vissa's hearing easily met these standards, and that there was no acoustical contingency that might arise which would be inaudible to him.
Tellingly, any serious assertion that Vissa's hearing impairment interfered in any way with his work as a school bus driver was eliminated on cross-examination of the school physician. The good doctor not only agreed that Vissa could hear the low- and middle-frequency components of sounds emitted across the frequency range, but he candidly admitted his ignorance of whether warning sounds emitted only in a high frequency were also concomitantly emitted in the low and middle frequencies. Finally, after the conclusion of the public hearing but before the Division of Human Rights issued its order, New York State's Department of Motor Vehicles adopted the Federal standard for the licensing of school bus drivers (15 NYCRR 6.11(b)(11), 6.12(c), 6.13) and the State Department of Education has followed suit (8 NYCRR 156.3(c)(1)). 2
On this record and in face of the injunction that the Human Rights Law, as remedial legislation, be construed liberally (Executive Law, §§ 290, 300), the Appellate Division found it necessary to rely on what I respectfully suggest is an erroneous interpretation of the exclusionary phrase "unrelated activity" as it appears in subdivision 21 of section 292 of the statute. That section, whose construction is therefore at the heart of this appeal reads in pertinent part: "The term 'disability' means a(n) * * * impairment * * * provided however, * * * the term shall be limited to * * * conditions which are unrelated to the ability to engage in the activities involved in the job or occupation which a person claiming protection of this article shall be seeking". Ignoring the principle that the proviso, as an exception, ordinarily would "be strictly construed in order that the major policy underlying the legislation itself is not defeated" (see McKinney's Cons.Laws of N.Y., Book 1, Statutes, § 213; 2A Sutherland, Statutory Construction (4th ed.), §§ 47.08, 47.11), the court found...
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