Under 21 v. City of New York
| Decision Date | 07 May 1985 |
| Citation | 488 N.Y.S.2d 669,108 A.D.2d 250 |
| Parties | , 37 Empl. Prac. Dec. P 35,378 UNDER 21, et al., Plaintiffs-Respondents-Appellants, v. The CITY OF NEW YORK, et al., Defendants-Appellants-Respondents. The SALVATION ARMY, Plaintiff-Respondent, v. Edward I. KOCH, etc., et al., Defendants-Appellants. AGUDATH ISRAEL OF AMERICA, Plaintiff-Respondent, v. The CITY OF NEW YORK, et al., Defendants-Appellants, State of New York, Puerto Rican Legal Defense and Education Fund, Inc., et al., Lambda Legal Defense and Education Fund, Inc., New York Civil Liberties Union, New York Chamber of Commerce and Industry, Amicus Curiae. |
| Court | New York Supreme Court — Appellate Division |
Alfred Weinstein, New York City, of counsel (Dennis deLeon, Michael S. Adler and Paul Rephen, on brief; Frederick A.O. Schwarz, Jr., Corp. Counsel, attorney), for City of New York.
John P. Hale, P.C., New York City, for plaintiffs-respondents-appellants, Under 21, Catholic Home Bur. for Dependent Children, Kennedy Child Study Center and Catholic Charities Counseling Service.
Joseph Polizzotto, New York City, of counsel (William J. Moss, Edward P. O'Keefe and Lindsay L. Wood, on brief; Cadwalader, Wickersham & Taft, attorneys), for plaintiff-respondent Salvation Army.
David Zwiebel, New York City, for plaintiff-respondent Agudath Israel of America.
O. Peter Sherwood, New York City, of counsel (Rosemarie Rhodes, Lawrence S. Kahn and Debra L. Raskin, on brief; Robert Abrams, Atty. Gen., attorney), for the State of N.Y., as amicus curiae.
Thomas B. Stoddard, New York City, of counsel (Thomas B. Stoddard and Madeline Kochen, attorneys) for New York Civil Liberties Union, as amicus curiae.
David L. Benetar, New York City, of counsel (Stanley Schair, on brief; Benetar, Isaacs, Bernstein & Schair, attorneys) for The New York Chamber of Commerce and Industry, as amicus curiae.
Robert L. Becker and Rosaria Esperon, New York City, for Puerto Rican Legal
Defense and Educ. Fund, Inc., as amicus curiae.
Richard E. Feldman, New York City, for Lambda Legal Defense and Educ. Fund, Inc., as amicus curiae.
Before CARRO, J.P., and ASCH, BLOOM and KASSAL, JJ.
Three actions were brought challenging the validity of Executive Order No. 50 issued by New York City Mayor Edward I. Koch on April 25, 1980, which, inter alia, forbids those who secure contracts with New York City from refusing to hire people simply on the basis of "sexual orientation or affectional preference" even if they can perform the job in a satisfactory manner.
The legal issues raised in all three are virtually the same, and Special Term treated the actions identically in disposing of the various motions then pending before it. The Court agreed with the plaintiffs' position that Executive Order 50 violated the New York State Constitution.
Invoking the recent opinion of the Court of Appeals in Subcontractors Trade Ass'n v. Koch, 62 N.Y.2d 422, 477 N.Y.S.2d 120, 465 N.E.2d 840, the Court, at nisi prius, stated that in issuing the Executive Order the Mayor had "usurped the power of the City Council" and "create[d] new social policy absent a proper legislative basis." It then concluded that Executive Order 50 was "unconstitutional as being ultra vires and an unlawful usurpation of legislative power."
The dissent, as did Special Term, also depends on the argument that the Mayor has encroached on the legislative prerogative. In our judgment, the validity of Executive Order No. 50 rests on a fundamental constitutional foundation. The Mayor does not, under the circumstances here presented, exercise legislative authority. Indeed, the rights of the individuals affected should be enforced as a matter of constitutional entitlement. Their rights, which the Mayor chose to reaffirm explicitly, are those which he is obligated to enforce under his oath of office.
It is quite easy to succumb to the strong emotions which are frequently evoked by the issue of homosexuality. But it is not necessary to vindicate homosexuality as a way of life for this Court to uphold Executive Order No. 50.
It is agreed by all the parties that the Executive Order does not make it compulsory for the agency to hire a person whose sexual orientation conflicts with the specific job description for which he or she is to be employed. The Order does not mandate an affirmative act. It simply prohibits job discrimination on the basis of a non-functional factor. All the parties agree that under Executive Order No. 50, a contracting agency is not in violation if it refuses to hire in those instances where sexual orientation or affectional preference is a bona fide occupational qualification. Where sexual proclivity does not relate to job function, it seems clearly unconstitutional to penalize an individual in one of the most imperative of life's endeavors, the right to earn one's daily bread.
These requirements of the Executive Order have been acquiesced in and presumably satisfied by plaintiffs for a number of years, apparently without dire consequences. Organizations operating under the same moral imperatives do not seem to find conflict between signing these contracts and furnishing secular services on behalf of New York City.
Executive Order 50 does not prohibit the exercise of religious belief. This Order does not attempt to infringe on the right of any religious organization to maintain its religious tenets. Nor is it a restriction on a private group using its own funds for its own purposes. However, when any organization contracts to perform secular services for the City, the Mayor has the power and the authority, and the constitutional obligation, to require non-discriminatory hiring policies based exclusively upon fitness for job performance.
Agreeing with the plaintiffs' position that Executive Order 50 exceeds the Mayor's authority under the New York State Constitution, the Court below essentially relied on four Court of Appeals decisions: Broidrick v. Lindsay, 39 N.Y.2d 641, 385 N.Y.S.2d 265, 350 N.E.2d 595; Rapp v. Carey, 44 N.Y.2d 157, 404 N.Y.S.2d 565, 375 N.Y.S.2d 745; Fullilove v. Beame, 48 N.Y.2d 376, 423 N.Y.S.2d 144, 398 N.Y.S.2d 765, and especially Subcontractors Trade Ass'n v. Koch, supra, 62 N.Y.2d 422, 477 N.Y.S.2d 120, 465 N.E.2d 840. Each of these cases examined the permissible scope of executive power. All four, together, constitute a body of legal precedent marking when an executive act enters improperly into the legislative domain.
I agree with Special Term, and essentially with the dissent, that the most recent of the four Court of Appeals decisions, Subcontractors, supra, recapitulates the principles applicable to the matter before us, but I disagree as to its application to the present controversy.
Subcontractors concerned the constitutionality of Mayor Koch's Executive Order No. 53, which required the City of New York to award 10 percent of all construction contracts to businesses either operating in poor neighborhoods or employing many poor people. In analyzing the Order, the Court expressed its approach for determining the constitutionality of anti-discrimination measures adopted by executive officers: the "remedial plan" test. An executive may not, said the Court (p. 428, 477 N.Y.S.2d 120, 465 N.E.2d 840), create "a remedial plan for which the executive never received a grant of legislative power." It then invalidated Executive Order 53 as just such a "remedial plan."
Where, as here, the executive adopts a plan specifying that a certain percentage of city construction contracts are to be allotted to a particular group or category of business enterprise, he has gone beyond his function of implementing general Charter-conferred powers. Such action constitutes an exercise of legislative power. (Id., 62 N.Y.2d at 429, 477 N.Y.S.2d at 124, 465 N.E.2d at 844, emphasis added).
If the Court below had applied the Subcontractors test to Executive Order 50, that case would have been distinguished on its facts and the Order would have almost certainly been upheld. Executive Order 50 is not a "remedial plan" as that term is used in Subcontractors.
In the other cases alluded to, the "remedial plans" which were invalidated established rigid numerical preferential quotas which favored some groups at the expense of others. In all three, the plans sought to make amends for past community discrimination by a restitution of current government benefits.
Executive Order 50 establishes no preferential treatment for any group. It merely requires would-be contractors to pledge not to discriminate against certain groups, provided the member can do his or her job. There are no quotas, no preferences and no affirmative acts which are sought to be imposed.
Executive Order 50 is grounded in the constitutional equal protection principles which bar arbitrary and invidious discrimination. Thus, under the Fourteenth Amendment to the United States Constitution and the New York State Constitution, Article 1, sec. 11, the City of New York is already prohibited from engaging in discrimination on the basis of sexual orientation or affectional preference. Section 1 of the Fourteenth Amendment reads in pertinent part:
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
This amendment contains no recitation of protective categories but protects everyone. Although the Supreme Court through case law has emphasized certain distinctions, i.e., race, national origin and alienage presumptively "suspect" or invidious under the Fourteenth Amendment (see Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010), it has repeatedly emphasized the fundamental, all-encompassing scope of the Fourteenth Amendment. Thus, in 1982, the Court said: "The Equal Protection...
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Under 21 v. City of New York
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