PERCYv. BRENNAN
PERCYv. BRENNAN 807 Cite as 384 F.Supp. 800 (1974) tivities of government officials or pri- 3. Exhaustion of State and City Advate entities which operate to foster discrimination by employers or unions. But even if an action under Title VII were appropriate, Congress specifically rejected the proposition that resort to the remedies of Title VII should be a prerequisite to anti-discrimination suits under 42 U.S.C. § 1981. The House and Senate Committees that reported the bills that became the 1972 amendments to Title VII disavowed any intent to restrict rights under 42 U.S.C. §§ 1981 and 1983. See H.R.Rep. No. 92-238, 92d Cong., 1st Sess. 18-19 (1971) ; Sen.Rep. 92-415, 92d Cong., 1st Sess. 24 (1971). The House Report states: "In establishing the applicability of Title VII to State and local employees, the Committee wishes to emphasize that the individual's right to file a civil action in his own behalf, pursu"'. ant to 42 U.S.C. §§ 1981 and 1983, is in no way affected two recent court decisic;ms; Young v. International Telephone and Telegraph Co., 438 F.2d 757 (3d Cir. 1971) and Saunders [sic] v. Dobbs House, 431 F.2d 1097 (5th Cir. 1970), have affirmed this Committee's belief that the remedies available to the individual under Title VII are co-extensive with the individual's right to sue under . . 42 U.S.C. § 1981, and that the two procedures augment each other and are not mutually exclusiv¢. The bill, therefore, . . does not affect existing rights that such individuals have already been granted by previous legislation." H.R.Rep. 92- 238, 92d Cong., 1st Sess. at 19 (1971), U.S.Code Cong. & Admin.News, 1972, p. 2154. See Young v. International Telephone and Telegraph Co., 438 F.2d 757, 763- 764 (3d Cir. 1971) and Sanders v. Dobbs Houses, Inc., 431 F.2d 1097, 1101 (5th Cir. 1970), cert. denied, 401 U.S. 948, 91 S.Ct. 985, 28 L.Ed.2d 231 (1971); see also Caldwell v. National Brewing Co., 443 F.2d 1044 (5th Cir. 1971), cert. denied, 405 U.S. 916, 92 S.Ct. 931, 80 L. Ed.2d 785 (1972). ministrative Remedies. [6] The State and private defendants' claim that plaintiffs have adequate remedies under state and city fair employment practice laws, and that judicial action is appropriate only upon exhaustion of those remedies, also fails. The Commissions established by New York State Human Rights Law and New York City are authorized only to hear complaints involving discriminatory employment practices by employers, employment agencies, labor organizations and apprenticeship committees, N.Y.Exec. Law, McKinney's Consol.Laws, c. 18, §§ 296, 297; N.Y.City Admin.Code § Bl- 7.0(a)-(c), and have no jurisdiction as to governmental action, or indeed action by any entity not falling within the categories just designated. [7] The plaintiffs cannot be required to exhaust state procedures where there is "no administrative remedy by which plaintiffs could have any assurance of getting the relief they wanted .." Eisen v. Eastman, 421 F.2d 560, 569 (2d Cir.1969); Plano v. Baker, 504 F.2d 595 (2d Cir. 1974) (Slip op.) ; see McNeese v. Board of Education, 373 U.S. 668, 88 S.Ct. 1433, 10 L.Ed.2d 622 ( 1963). As the Eisen court stated, "Exhaustion of state administrative remedies is not required where the administrative remedy is inadequate or where it is certainly or probably futile." 421 F.2d at 569. The case at hand supports this position even more strongly than did the facts in Eisen. In Eisen an administrative remedy clearly existed, which would have been futile to invoke because earlier decisions dictated an adverse outcome. Here the administrative remedy does not even exist as to the subject matter in dispute. 4. Standing of the Individual Plaintiffs. The federal defendants assert that plaintiffs lack standing to seek relief for the class they represent because the claim of discrimination alleged here is not properly directed against them, but
808 384 FEDERAL SUPPLEMENT rather is, or should be, lodged against the unions and employers in the New York City building trades, and that therefore the essential "logica\ nexus between the status asserted by the litigant[s] and the claim [they] present[s]" is missing. Flast v. Cohen, 392 U.S. 83, 102, 88 S.Ct. 1942, 1953, 20 L.Ed.2d 947 ( 1968) . It is true that the amended compla.int states: "The inability of the plaintiffs and the class they represent to obtain employment or training is the . direct result of employment practic~s of construction industry unions aqd employers in the New York City area which .discriminate against black and Spanish-surnamed persons." (IT 2:4) Yet the fact that contractors and unions discriminate against minority persons in no way precludes the existence of unlawful, if somewhat less direct, discrimination by others. [8] To establish standing1 a party must allege "such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions." Baker v. Carr, 369:U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962); see Flast v. Cohen, supra 392 U.S. at 101, 88 S.Ct. 1942, 20 L.Ed.2d 947. As black and Hispanic construction workers who allegedly have been and continue to be denied employment in the New York construction industry, the individual plaintiffs have initially demonstrated "a personal stake". The existence of standing depends first on "whether the plaintiff alleges that the challenged action has caused him injury in fact, economic or otherwise", Association of Data Processing Service v. Camp, 397 U.S. 150, 152, 90 S.Ct. 827, 829, 25 L.Ed.2d 184 (1970), and second on whether the plaintiffs are "within the class of persons that the provision[s] was designed to protect." Association of Data Processing, 397 U.S. at 155, 90 S.Ct. at 831. The injury alleged here is not, as the federal defendants assert, the denial of job opportunities alone, but rather, as in Norwalk C.O.R.E. v. Norwalk Redevelopment Agency, 395 F.2d 920, 927 (1968), abridgement of "the right not to be subjected to racial discrimination in government programs." The federal defendants are charged with enforcement of Executive Order No. 11246; if they have, by approval of the New York Plan, failed to enforce that order, this approval has "affirm[ed] the discrimination" of the construction industry and has inflicted an injury upon plaintiffs. Norwalk C.O.R.E. v. Norwalk Redevelopment Agency, supra, 395 F.2d at 931; see Barlow v. Collins, 397 U.S. 159, 163-164, 90 S.Ct. 832, 25 L.Ed.2d 192 (1970). [9] As to the second requirement, the plaintiffs are obviously "with.in the class of persons that the . provision [s J was designed to protect." Association of Data Processing, supra, 397 U.S. at 155, 90 S.Ct. at 831. Injuries resulting from racial discrimination fall squarely within the protections of the Fifth and Fourteenth Amendments to the Constitution, 42 U.S.C. § 1981, and Executive Order No. 11246. 5. Standing of Fight Back and NAACP. [10] The private defendants challenge the standing of the organizational plaintiffs, Fight Back and NAACP. Their argument, however, flies in the face of the Supreme Court's ruling that, "It is clear that an organization whose members are injured may represent those members in a proceeding for judicial review." Sierra Club v. Morton, 405 U.S. 727, 739, 92 S.Ct. 1361, 1368, 31 L.Ed.2d 636 (1972); see, e. g., NAACP v. Button, 371 U.S. 415, 428, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963); Nat'l Welfare Rights Organization v. Wyman, 304 F.Supp. 1346, 1348 (E.D.N.Y.1969). The amended complaint describes Fight Back as an organization of black and Hispanic · construction workers which devotes the majority of its efforts to obtaining employment for such work-
