Brooklyn Union Gas Co. v. New York State Human Rights Appeal Board

Margett, J. (dissenting).

The issue presented here is whether the petitioner may refuse to provide benefits for pregnancy-related disabilities because of the exclusion of such benefits from those mandated by the Disability Benefits Law (Workmen’s Compensation Law, art 9).

A public employer is obligated by the Human Rights Law (Executive Law, art 15) to provide the same benefits for pregnancy-related disabilities as it grants for other temporary disabilities (Matter of Board of Educ. of City of N. Y. v State Div. of Human Rights, 42 AD2d 854, affd 35 NY2d 675). The petitioner, a private concern doing business as a public utility, *388voluntarily provides sick leave and disability benefits in excess of the requirements of the Disability Benefits Law.

The married female complainant has been employed by the petitioner as a senior accounting executive. Her duties included the handling of ledgers measuring two feet in length and weighing approximately eight pounds. She became pregnant and continued to work. In her seventh month she complained to her physician that she was not feeling well and could no longer work a full day. He recommended that she take a leave of absence. At that time the complainant had been in the petitioner’s employ for almost six years and had accumulated approximately four weeks’ sick leave. The petitioner granted her request for a voluntary leave of absence but denied the sick leave on the ground "that the company never had paid for maternity benefits and that they weren’t going to start now.” Two months later the complainant gave birth by Caesarean section.

Under the pertinent provision of the Disability Benefits Law, an eligible employee is entitled to receive one half of his average weekly wage, with a minimum of $20 per week and a maximum of $75 per week, for a disability commencing on or after July 1, 1970 and before July 1, 1974 (Workmen’s Compensation Law, § 204, subd 2). Disability benefits begin with the eighth consecutive day of disability and may not exceed 26 weeks during a period of 52 consecutive weeks (Workmen’s Compensation Law, § 204, subd 1; § 205, subd 1). Each employee is required to contribute one half of 1% of his wages up to a maximum of 30 cents per week (Workmen’s Compensation Law, § 209, subd 3). The balance of the cost of providing the mandated benefits shall be contributed by the employer (Workmen’s Compensation Law, § 210).

Disability is defined as "the inability of an employee, as a result of injury or sickness not arising out of and in the course of an employment, to perforin the regular duties of his employment or the duties of any other employment which his employer may offer him at his regular wages and which his injury or sickness does not prevent him from performing” (Workmen’s Compensation Law, § 201, subd 9). The statute expressly excludes payment of benefits "for any period of disability caused by or arising in connection with a pregnancy” (Workmen’s Compensation Law, § 205, subd 3) and "for any disability occasioned by the wilful intention of the employee to bring about injury to or the sickness of himself or *389another” (Workmen’s Compensation Law, § 205, subd 4). Short-term disabilities of fewer than eight days’ duration are excluded by implication (Workmen’s Compensation Law, § 204, subd 1). The employer’s statutory obligation may be satisfied by any other plan or agreement which provides benefits at least as favorable as the statutory benefits (Workmen’s Compensation Law, § 211).

The petitioner has voluntarily undertaken to provide accumulated sick leave benefits to its employees in addition to what it terms "Statutory Benefits” and to forego any financial contribution from its employees. Apart from the reference to "Statutory Benefits”, the petitioner’s plan is silent with respect to the types of disabilities for which it has provided benefits. The only testimony with respect to the plan is the complainant’s testimony that, for an employee to receive sick pay for any temporary physical disability, he was merely required to "call in sick” in the morning.

In 1973, a number of our decisions involving pregnant school teachers were affirmed by the Court of Appeals on the opinion of Mr. Justice Hopkins in the East Williston (42 AD2d 49, infra) case. These decisions were summarized by Judge Jones as follows (Union Free School Dist. No. 6 of Towns of Islip & Smithtown v New York State Human Rights Appeal Bd., 35 NY2d 371, 375-376, mot for lv to reargue den 36 NY2d 807): "We have held that a personnel policy which singles out pregnancy, among all other physical conditions to which a teacher may be subject, as a category for special treatment in determining when leave from duty shall begin is prohibited by the proscriptions of our State’s Human Rights Law (Board of Educ. of Union Free School Dist. No. 2, East Williston v. New York State Div. of Human Rights, 35 NY2d 673, affg. 42 A D 2d 49). Likewise, we have held that the Human Rights Law requires that a pregnant teacher who takes a pregnancy-related leave must be permitted to take advantage of her sick and sabbatical leave entitlements to the same extent as would be the case were she suffering from some other temporary physical disability (Matter of Board of Educ. of City of N. Y. v. State Div. of Human Rights, 35 N Y 2d 675, affg. 42 A D 2d 854).”

In our case the majority concludes that, because public employers are not subject to the requirements of the Disability Benefits Law, the "school cases” do not reach the issue before us. Thus, the majority seeks to limit the effect of the *390decisions in those cases solely to teachers. In my view, the Human Rights Law is not so limited. The reference to "teachers” in the "City of New York” is obviously due to the fact that the suit was brought by a teacher against the board of education. As a result, the compensation and terms of employment referred to in the Human Rights Law were necessarily compared with those of other teachers.

The majority holds that the petitioner is excused from providing benefits for pregnancy-related disabilities by the exclusion of such disabilities in the Disability Benefits Law. It attaches no significance to the employer’s provision of both statutory and extrastatutory benefits, all at no cost to the employee. It characterizes fringe benefits as "an act of corporate kindness” and expresses concern that this not be made "a fixed obligation even beyond the intent of the donor.” On this point, the majority’s concern is needless; the petitioner has a readily available remedy if indeed the scheme of the Disability Benefits Law frees private employers from the constraints of the Human Rights Law. It need only elect to reduce both the benefits it provides and its contribution to the statutory requirements (Workmen’s Compensation Law, § 211, subd 5). However, it must be noted that, under Equal Employment Opportunity Commission guidelines, an employer’s provision of sick pay and disability benefits is a fringe beneñt and, as such, is included in the conditions of employment subject to the Civil Rights Act (Wetzel v Liberty Mut. Ins. Co., 372 F Supp 1146, 1158-1159, affd 511 F2d 199, cert granted 421 US 987; Gilbert v General Elec. Co., 519 F2d 661, 663, cert granted 423 US 822).1

More importantly, however, it must be noted that the majority appears to be overlooking decisional law. The personnel policies held discriminatory in both the East Williston and City of New York cases had been unilaterally promulgated by the employer. Judge Jones noted this when the Court of Appeals held that discriminatory policies are proscribed by the Human Rights Law even where they are the product of negotiations under the Taylor Law (Islip & Smithtown, supra [which adopted the opinion of Mr. Justice Hopkins in the Town of Babylon, infra, case]).. Mr. Justice Hopkins had previously called attention to the fact that the discriminatory maternity leave policies in East Williston were a unilateral *391policy of the employer, holding that such policies are forbidden by the statute despite the fact that they are contained in a bilateral agreement between the employee and a collective bargaining agent (Matter of Union Free School Dist. No. 6, Town of Babylon v New York State Div. of Human Rights, 43 AD2d 31, 34, app dsmd 33 NY2d 975).

The majority chooses not to distinguish between normal and abnormal pregnancy, to regard the complainant’s pregnancy as normal, and to rely upon the decision of the United States Supreme Court in Geduldig v Aiello (417 US 484). While recognizing that our Court of Appeals deemed Aiello irrelevant with respect to our Human Rights Law, the majority nevertheless applies that case to the case at bar. As stated by Judge Jones, the Aiello court "concluded that the equal protection clause of the Federal Constitution did not preclude a State Legislature from adopting the pregnancy-childbirth classification which was 'rationally supportable’ in a social welfare program” (Union Free School Dist. No. 6 of Towns of Islip & Smithtown v New York State Human Rights Appeal Bd., 35 NY2d 371, 376, supra).

The California statute, as amended, which was the subject of Aiello, unlike our Disability Benefits Law, included benefits for disabilities due to abnormal pregnancies and was funded entirely by employee contributions.2 However, like the New York statute, the California statute excluded benefits for *392normal pregnancy and for the first eight days of all other disabilities. Despite the complainant’s testimony that she requested a leave of absence, on her physician’s advice, after she complained to him that she was not feeling well, and despite the fact that she underwent a Caesarean section, the majority characterizes her pregnancy as normal. The majority overlooks the fact that, under the amended California statute considered in Aiello, the complainant would have received benefits as that statute explicitly provides for benefits where the claimant is disabled because of a Caesarean section delivery (Geduldig v Aiello, supra, pp 490-491).

Aiello further discloses that the Supreme Court was particularly impressed by the fact that the statutory program was funded entirely by employee contributions, was self-sustaining, and had required no State subsidy (pp 492-493). The Supreme Court noted that normal pregnancy was not the only class of disability excluded and referred (p 495) to "the other expensive class of disabilities that are excluded from coverage— short-term disabilities.” While the New York statute also excludes short-term disabilities, the petitioner’s plan does not.

While it is the petitioner’s private plan and not the statutory plan which is the subject of this appeal, the following comments are worthy of note. The amendment of the Executive Law in 1965 so as to prohibit sexual discrimination represents a more recent expression of the legislative will than does thé 1949 exclusion of benefits for pregnancy-related disabilities in the Disability Benefits Law. Further, the majority stresses the failure of the Legislature to repeal this exclusion. Such emphasis is not altogether accurate. In the past regular legislative session, the Assembly voted and passed the pertinent bill on June 24, 1975 (A.I. 2325, S. Posner). Its companion bill was still in committee when the session ended (S.I. 728, Goodman) and the Senate therefore had no opportunity to vote on this legislation.

Further, any conflict in legislative intent between the two statutes is more apparent than real. The exclusion in the Disability Benefits Law of disabilities arising from pregnancy was based not on principle but upon the pragmatic consideration of providing benefits "at reasonable cost”. On the other hand, employer policy is not discriminatory within the proscription of the Human Rights Law if the policy has a "reasonable foundation” (Board of Educ. of Union Free School Dist. No. 2, East Williston, Town of North Hempstead v New *393York State Div. of Human Rights, 42 AD2d 49, 52, supra). The employer which demonstrates that its otherwise nondiscriminatory disability benefit program will be jeopardized by the inclusion of pregnancy-related disabilities ipso facto presents a reasonable foundation for differentiating between pregnancy-related disabilities and other disabilities. However, "the statute imposes the burden of warranting the exceptional treatment of the individual on the employer” (p 52). At bar, the record is bare of evidentiary facts to support the reasonableness of the employer’s policy. As the District Court said in the Wetzel case (supra, p 1162): "Again, we have a difficult time in freeing ourselves from stereotype thinking. * * * We may assume from a general knowledge of the conditions of life, that in the normal or usual pregnancy, the period of disability will be relatively short. There is nothing in this record to show, and nothing in our general experience with life indicates that the job-related incidence of disability for pregnancy is any greater or any less than that for a prostatectomy.”

Here, the petitioner’s plan not only excludes pregnancy-related disabilities, abnormal as well as normal, but, by its provision of accumulated sick leave beneñts, includes short-term beneñts. The petitioner therefore includes in its income protection plan benefits for the "other expensive class of disabilities” excluded in Aiello and does so entirely at its own expense.

A number of decisions at the Federal appellate level have held that the exclusion of benefits for pregnancy violates the Civil Rights Act, as interpreted by the administrative guidelines (Wetzel v Liberty Mut. Ins. Co., 511 F2d 199, cert granted 421 US 987, supra; Gilbert v General Elec. Co., 519 F2d 661 [CCA 4th], cert granted 423 US 822, supra; Hutchison v Lake Oswego School Dist. No. 7, 519 F2d 961 [CA 9th]). The Wetzel court considered the issue of the voluntariness of pregnancy at length and concluded that, because of religious convictions and differing methods of contraception, pregnancy itself may not be voluntary (supra, p 206). The Gilbert court noted that, in labor arbitration, pregnancy is equated with other disabilities (supra, p 665).

The private employer which provides a disability benefit plan for its employees which differs substantially from the statutory plan mandated by the Disability Benefits Law is no more privileged to disregard the strictures of the Human Rights Law, as interpreted by the case law, than is the public *394employer. The petitioner’s plan, with its provision of benefits including sick leave at no cost to its employees, is significantly different from the mandatory statutory plan and thereby represents the private policy of an employer. It follows that, by failing to provide for pregnancy-related disabilities the same benefits which it provides for other disabilities, the petitioner is pursuing a policy violative of the constraints of the Human Rights Law (Matter of Board of Educ. of City of N. Y. v State Div. of Human Rights, 42 AD2d 854, affd 35 NY2d 675, supra).

Rabin, Acting P. J., and Brennan, J., concur with Cohalan, J.; Margett, J., dissents and votes to deny the motion to vacate and to grant the cross motion for confirmation, with an opinion, in which Shapiro, J., concurs.

Petition granted on the merits and order of the Human Rights Appeal Board, dated February 18, 1975 vacated; cross motion for enforcement thereof denied, without costs.

. The administrative guidelines of the Equal Employment Opportunity Commission are entitled to great deference (Griggs v Duke Power Co., 401 US 424, 433-434).

. Although this question is not before us, the New York statutory exclusion of benefits "for any period of disability caused by or arising in connection with a pregnancy” would appear to seriously jeopardize the constitutionality of the Disability Benefits Law with respect to disabilities caused by abnormal pregnancies. While Aiello was pending in the Federal District Court, the California Court of Appeals construed a similar statute to preclude only the payment of benefits for disability caused by normal pregnancy (Geduldig v Aiello, 417 US 484, 490, supra). The statute was subsequently amended to include payment of benefits for abnormal pregnancy and delivery (Geduldig v Aiello, supra, pp 490-491). It was the statute, as amended, which was the subject of the Supreme Court of the United States’ decision in Aiello, Neither title VII of the Civil Rights Act of 1964 (US Code, tit 42, § 2000e et seq.) nor the Equal Employment Opportunity Commission’s guidelines are mentioned in Aiello. The issue was not alleged in the complaint and the question was not raised on argument (see Communications Workers of Amer., AFL-CIO v American Tel. & Tel. Co., 513 F2d 1024). A possible explanation for this omission lies in the fact that the California statute provided for a plan funded entirely by employee contributions while the Civil Rights Act states that it shall be unlawful for an employer to exercise discrimination (US Code, tit 42, § 2000e-2). The New York statutory plan is funded by both employer and employee contributions. Aiello is further distinguished from the case at bar by the fact that there was a full record in Aiello (see Communications Workers of Amer., AFL-CIO v American Tel. & Tel. Co., supra, p 1031).