McLean Trucking Co. v. State Human Rights Appeal Board

Determinations of the State Human Rights Appeal Board, dated July 14, 1980, affirming an order of the State Division of Human Rights, dated July 16, 1979, which upheld the complaints of respondents Kurz, O’Brien and Shumalski and awarded them compensatory damages, and affirming an order of the State Division of Human Rights, dated July 16, 1979, which upheld the complaint of respondent Travers and awarded him compensatory damages, confirmed, without costs, and cross petitions by the State Division of Human Rights for orders of enforcement granted. The facts as to complainants Kurz, O’Brien and Shumalski are substantially as set forth in the dissent. We find the within orders to have been supported by substantial-evidence on the whole record (Executive Law, § 297-a, subd 7, par d) and not arbitrary, capricious or characterized by an abuse of discretion (Executive Law, § 297-a, subd 7, par e); and that the findings upon which said orders were based were supported by sufficient evidence on the record considered as a whole and are therefore conclusive (Executive Law, § 298). Based upon these findings the orders of the appeal board should not be disturbed (City of Schenectady v State Div. of Human Rights, 37 NY2d 421, 424). “Judicial review of the determination made by an administrative agency, such as the State Division of Human Rights, is limited to a consideration of whether [it] was supported by substantial evidence upon the whole record” (300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176, 181). As to Kurz, O’Brien and Shumalski, not only did McLean fail to obtain a written medical report in each case, pursuant to Federal regulations, but it failed to call the physician as a witness. It had no records to establish what findings were made by the doctor as to the nature or extent of the alleged disabling condition of each complainant and was not able to establish the relationship of the alleged conditions to the requirements of the positions sought. Complainant Travers, then 23 years old, applied to respondent for employment as a tractor trailer driver. He was not hired because he did not meet its then minimum age requirement of 24 years. Federal Motor Carrier Safety Regulations of the Federal Highway Administration require as a minimum qualification only that a driver for a motor carrier be at least 21 years old. The partial consent decree entered into the United States District Court for the District of Columbia, and relied upon by the respondent, while permitting a minimum age requirement of up to 25 years, did not compel respondent to maintain that age as a minimum qualification and thus raised no conflict between the terms of the decree and the requirements of the Human Rights Law. Respondent did not establish that age 24 was a bona fide occupational qualification and indeed some months later lowered its minimum hiring age to 23 years. The record as to each respondent shows that the appeal board had the right to affirm the findings of discrimination by the Division of Human Rights. Concur — Fein, J. P., Markewich and Carro, JJ.