Petitioner is a black male who has been employed by Xerox as an assembler and stock handler for five years. In 1974 petitioner was stopped for speeding. An altercation ensued and he was arrested. As a result he was suspended from his employment. Upon petitioner’s complaint to the State Human Rights Division, it conducted an investigation and held an informal conference following which it made a finding of no probable cause which was affirmed by the Human Rights Appeal Board.
The majority have voted to confirm this determination. I respectfully dissent and vote to reverse and remit this matter to the State Division of Human Rights to accord petitioner his right to á public hearing on the merits which he was improperly denied.
The pivotal question presented is whether respondent’s policy of suspension based upon a consideration of an employee’s record of arrests for “serious violations of law” constitutes an unlawful discriminatory practice where it may be statistically demonstrated that blacks are subject to arrests in disproportionate numbers to their race than are whites. In my view this policy is discriminatory in effect notwithstanding the lack of intent or motive on respondent’s part to discriminate and, absent a showing of business necessity, violates the Human Rights Law of this State. Such conclusion is bottomed on the rationale enunciated by the Supreme Court in Griggs v Duke Power Co. (401 US 424) where an otherwise seemingly neutral employment policy was held to operate to exclude blacks despite the absence of any discriminatory intent. The Supreme Court stated that employment procedures that operate as "built-in headwinds” for minority groups and that are unrelated to measuring job capability should be prohibited (401 US, at p 432).
New York has adopted a similar attitude towards employment practices which, although they appear to be neutral on their face or even neutral in terms of intent, adversely affect equal employment opportunity for a protected class of persons. Such practices have consistently been struck down by the appellate courts in this State. In most of those cases prima *26facie proof of the de facto discrimination has utilized statistical evidence. (See, e.g., State Div. of Human Rights v Kilian Mfg. Co., 35 NY2d 201; Matter of Sontag v Bronstein, 33 NY2d 197; New York State Div. of Human Rights v New York-Pennsylvania Professional Baseball League, 36 AD2d 364, affd 29 NY2d 921; State Div. of Human Rights v New York City Dept. of Parks & Recreation, 38 AD2d 25.)
In the instant case there can be little doubt that the relevant statistical evidence establishes that the use of arrest records as a factor in the consideration of employment, discharge, suspension or any other term or condition of employment has a disproportionately adverse effect upon blacks than whites. Although the use of arrest records as an impermissibly discriminatory device appears to be a case of first impression in New York, several Federal courts have previously recognized the adverse effect that the use of arrest data has had on black employment. In Gregory v Litton Systems (316 F Supp 401, mod 472 F2d 631), Litton’s policy of refusing to hire frequently arrested persons was conceded to be objectively applied and enforced without reference to race. Nevertheless, the discriminatory impact and consequences of such a policy were sufficient to invalidate the policy regardless of the absence of an intent to discriminate. The Ninth Circuit Court of Appeals further noted (p 632) that, "[historical discrimination need not be shown in order to obtain relief from discrimination in fact, regardless of its cause or motive” (see, also, Carter v Gallagher, 452 F2d 315 [where court held that conviction records may properly be considered in employment decisions under proper guidelines but that arrest records and certain written tests were impermissibly discriminatory]).
The only question remaining is whether respondent has demonstrated a business necessity. Only substantial evidence of business necessity, job relatedness, or bona fide occupation qualification will excuse the discriminatory impact of an employment policy and there must be "no acceptable alternative that will accomplish that goal 'equally well with a lesser differential racial impact’.” (United States v St. Louis-San Francisco Ry. Co., 464 F2d 301, 308, cert den 409 US 1116.) In this regard mere conclusory statements of business necessity are not enough (Wallace v Debron Corp., 494 F2d 674; Gregory v Litton Systems, supra). Business necessity or job relatedness must be affirmatively proved by the party claiming it (Weeks v Southern Bell Tel. & Tel. Co., 408 F2d 228; Bowe v Colgate-*27Palmolive Co., 416 F2d 711; Cheatwood v South Cent. Bell Tel. & Tel. Co., 303 F Supp 754; New York State Div. of Human Rights v New York-Pennsylvania Professional Baseball League, supra). Business necessity in this context means that the employment policy must be "essential to the safe and efficient operation of the business” (Gregory v Litton Systems, supra, p 403). Unless the employer can establish that job performance depends upon sensitive security, fiduciary responsibility or that persons who are arrested perform less honestly or less efficiently than other persons no business necessity has been established (see Richardson v Hotel Corp. of Amer., 332 F Supp 519, affd 468 F2d 951). Similarly, the United States Equal Employment Opportunity Commission has determined that personnel decisions based upon arrest record data violate the antidiscrimination laws unless justified by legitimate business considerations) (EEOC Dec. No. 74-83, CCH Emp. Prac. Guide U 6414 [Feb. 7, 1974]; EEOC Dec. No. 74-92, CCH Emp. Prac. Guide f 6424 [Feb. 21, 1974]; EEOC Dec. No. 74-90, CCH Emp. Prac. Guide f 6423 [Feb. 15, 1974]; EEOC Dec. No. 74-02, CCH Emp. Prac. Guide f 6386 [July 10, 1973]). The courts have repeatedly held that these guidelines are entitled to "great deference” (Udall v Tallman, 380 US 1, 16; Phillips v Martin Marietta Corp., 400 US 542, 544 [concurring opn, Marshall, J.]; New York State Div. of Human Rights v New York-Pennsylvania Professional Baseball League, 36 AD2d 364, 369, affd 29 NY2d 921). With respect to arrest data particularly, it has been noted that, "The most axiomatic of our criminal presumptions—that a man is innocent until proven guilty—seems to suggest that the arrest means nothing at all. Any predictive significance for job performance it may have will have to be validated by more than mere specification.” (Employment Discrimination and Title VII of the Civil Rights Act of 1964, 84 Harv. L. Rev. 1109, 1152 [1971]; see, also, Title VII: Discriminatory Results and the Scope of Business Necessity, 35 La. L. Rev. 146 [Fall 1974].)
The majority theorize that an arrest is a "voluntary act” by the petitioner employee, concluding thereby that this fact obviates any employment policy based upon it from the ambit of an unlawful discriminatory practice. Whether or not an arrest is a voluntary act on the part of an employee it should be, per se, an entirely irrelevant consideration in the formulation of employment policy under the Human Rights Law.
No proof of business necessity has been presented in the *28instant case to justify respondent’s policy. The Appeal Board’s determination adjudged this factor simply by stating that respondent’s policy "appears to be a business judgment.” This is hardly enough to justify the use of a prima facie discriminatory practice. Respondent has merely articulated a concern that the presence of persons charged with serious crimes may adversely affect the work performance of that employee and his fellow employees. In my view such concern is not sufficient to eliminate the necessity for a hearing at which respondent has the burden of proving that its concern rises to the level of a legitimate business necessity supported by substantial evidence. On this record only questions of fact are raised. The Division’s own field investigation revealed the equivocal nature of the legitimacy of respondent’s defense when, upon questioning, respondent’s foreman could not say or did not know whether any of complainant’s co-workers had complained about working with the petitioner. At best, the present record establishes the erroneous application of law by the agency in focusing upon the motivation and intent of respondent rather than the impact or consequences of the policy.
Thus, the Division and the Appeal Board erred as a matter of law in dismissing the complaint prior to a hearing. "For the Division to dismiss his complaint under such circumstances it must appear virtually that as a matter of law the complaint lacks merit” (Mayo v Hopeman Lbr. & Mfg. Co., 33 AD2d 310, 313). In my view petitioner is entitled to a hearing to test and cross-examine respondent’s policy.
Moule, J. P., Simons and DelVecchio, JJ., concur with Mahoney, J.; Cardamone, J., dissents and votes to annul the determination and remit the matter for a hearing, in an opinion.
Determination confirmed without costs.