Candy Callery, height 5 feet 6 inches, weight 125 pounds (the usual rotogravure dimensions are not here relevant) filed a complaint with the State Division of Human Rights alleging that the City of New York through its Department of Parks and Recreation, discriminated against her in employment as a lifeguard, because of her sex, in violation of the Human Rights Law (Executive Law, art. 15).
She was not accepted, because the city requires lifeguards to be at least 5 feet 7 inches in height and at least 135 pounds in weight.
Originally, Commissioner Mangum made a finding of nondiscrimination and ordered the complaint dismissed. The Human Rights Appeal Board remanded for a further hearing and new findings of fact were made, including the obvious facts that the afore-mentioned minimum height and weight standards disqualified “ females at a substantially higher rate than male applicants ”, “ that height and weight requirements are reasonably related to the duties of lifeguard at a swimming facility ’ ’, because they had to do with possible needed strength for safety, discipline over bathers, etc., but that it is possible for those of a smaller stature to do the job, which can be determined by testing and training.
The determination as modified by the Appeal Board (the matter within brackets has been eliminated by the Appeal Board from the Commissioner’s determination) follows:
“ 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.
*30“ 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.] ”
Requirements of age, weight, height, experience, etc. are “ at best an arbitrary standard to separate the men from the boys. At worst, it is a deprivation of a constitutional right to work while restricting the market ” (Matter of Tchernoff, 36 A D 2d 527, 528 [1st Dept., 1970] [dissent]). Many standards may be considered capricious, e.g., one sustained by this court in Matter of Jenkins v. Department of Social Servs. (37 A D 2d 765) requiring a Master of Social Work degree for a raise for City Social Service employees where the employee involved had completed a satisfactory equivalent course leading to a ■different degree unacceptable by the language of the New York City Department of Welfare .rules.
Although in many ways the lines of distinction between male and female fade, it cannot be gainsaid that the weight and height requirement has the effect of eliminating more women than men. See Statistical Abstract of the United States 1970, No. 120 “ Weight Range of Men and Women by Age and Height: 1960-1962 ”.
But was it the purpose of this requirement deliberately to exclude females ? The question answers itself when one considers the factual situation with regard to female hire for lifeguard by the City of New York and exposes the analogous to a post hoc ergo propter hoc fallacy of the majority determination here.
No woman had been hired as a lifeguard, until one was hired after this proceeding had commenced, out of .some 800 annual employees for this purpose. While their work included difficult ocean surf and heavy equipment, it also included pools and dealing with children. In typical bureaucratic fashion, the possibility of having some lifeguards for the less rigorous exposure was avoided. When the complainant first applied to take the lifeguard test, she was told “ Sorry, girls aren’t allowed to take it.”
It is clear and amply sustained that women were discriminated against — period. It had nothing to do with height and weight.
*31Where one excludes all in a group, why bother to set standards which will only exclude a large number?
While the need for weight and height limitations has not been fully substantiated, and there may be a better way to make the selection, this is administrative shorthand. E.g., the New York City Civil Service Commisssion Regulations for Police Trainee state “Height — Minimum of 5 feet 7 inches in bare feet is required. ’ ’
The majority imputes malevolence to, in this instance, a mindless determination based on a balance of convenience without much cogitation.
If another nail is to be used to firm the plaque dedicated to the end of the cult of sex discrimination, let it not be bogged down in the menstrual cycle.
I would modify to strike all portions of the order set forth above other than item 4. The only requirement should be that “Respondent shall offer employment to applicants without regard to sex.”
Let those in the city administration who have responsibility for swimming make the determination (with cerebrum) as to what standards are really necessary for a lifeguard. Those standards have not yet run afoul of the Human Rights Law (Executive Law, art. 15, § 296). (See Matter of New York Stock Exch. v. N. Y. S. Div. of Human Rights, 37 A D 2d 941.)
Markewich, J. P., Murphy, McNally and Tilzer, JJ., concur in Per Curiam opinion; Kupferman, J., concurs in part and dissents in part in an opinion.
Application denied, order dated May 21, 1971 of the State Human Rights Appeal Board confirmed, and the petition dismissed, without costs and without disbursements, and the petitioner is directed to comply with said order.