Matter
Matter of Fullilove v Beame, 48 N.Y.2d 376 (1979) 398 N.E.2d 765, 423 N.Y.S.2d 144, 22 Empl. Prac. Dec. P 30,572 (1) Although the executive clearly has the power and obligation to implement programs designed to prohibit discriminatory hiring practices, and, indeed, the State Legislature has stated that voluntary use of a State-approved affirmative action plan by private employers shall not be an unlawful discriminatory practice (Executive Law, § 296, subd 2), there is a vast difference between permitting employers to voluntarily adopt an affirmative action program and mandating by executive order that this be done involuntarily under threat of legal sanctions, and there is also a distinction between executive affirmative action which would merely enlarge the pool of persons eligible for employment based on discrimination-free selection and affirmative action in hiring practices; under our governmental system, the central feature of which is distribution of powers, the executive does not have the authority to initiate such affirmative action without legislative authorization. 9 NY Jur, Constitutional Law § 114 TOTAL CLIENT SERVICE LIBRARY REFERENCES Executive Law §296 subd 2 16 Am Jur 2d, Constitutional Law § 218 POINTS OF COUNSEL Allen G. Schwartz, Corporation Counsel (L. Kevin Sheridan, Esmeralda Simmons and Michael Vaccari of counsel), for appellants. The 1977 regulations validly implement existing legislation prohibiting discrimination and satisfy the guidelines set down in Matter of Broidrick v Lindsay. (Matter of Broidrick v Lindsay, 39 NY2d 641; Local Union No. 35 of Int. Nat. Brotherhood of Elec. Workers v City of Hartford, 462 F Supp 1271; Fullilove v Kreps, 584 F2d 600; University of Cal. Regents v Bakke, 438 US 265.) Robert G. Benisch for respondents. I. The city charter gives neither the Mayor nor the Deputy Mayor the power to promulgate the rules at issue herein. (Matter of Picone v Commissioner of Licenses, 241 NY 157; Rapp v Carey, 58 AD2d 918, 44 NY2d 157; University of Cal. Regents v Bakke, 438 US 265.) II. The rules at bar are in contravention of existing law *378 and, therefore, invalid. (Matter of Broidrick v Lindsay, 39 NY2d 641; Contractors Assn. of Eastern Pa. v Secretary of Labor, 442 F2d 159.) Per Curiam. OPINION OF THE COURT In this case as well as in Matter of Fullilove v Carey (48 NY2d 826), the fundamental question presented is not whether affirmative action is permissible or desirable. The question, simply and narrowly, is whether, under our governmental system, the central feature of which is distribution of powers, the executive has the authority to initiate affirmative action without legislative authorization. Although the rule elsewhere may differ, the law in New York is clear. The State Legislature, as well as the New York City Council, has unequivocally condemned discriminatory hiring practices. The executive clearly has the power and obligation to implement programs designed to prohibit discriminatory hiring practices. Indeed, the State Legislature has gone so far as to state that voluntary use of a State-approved affirmative action plan by private employers ”shall not be an unlawful discriminatory practice“ (Human Rights Law, [Executive Law], § 296, subd 12). © 2020 Thomson Reuters. No claim to original U.S. Government Works. 2
Matter of Fullilove v Beame, 48 N.Y.2d 376 (1979) 398 N.E.2d 765, 423 N.Y.S.2d 144, 22 Empl. Prac. Dec. P 30,572 But as this court stated in Matter of Broidrick v Lindsay (39 NY2d 641, 644, 646-647): ”Nowhere in the law has the city council prescribed affirmative action to redress the effects of discrimination. There is a dramatic distinction between the expressed legislative policy of prohibiting employment discrimination and the mayoral policy of mandating employment 'percentages'. “ Similarly there is a vast difference between permitting employers to voluntarily adopt an affirmative action program and mandating that this be done involuntarily under threat of legal sanctions. The difference between obligations that require the taking of certain steps, and those that merely require one to refrain from others, is, in this sensitive area of racial relations, not merely one of degree, but of kind. Where the Legislature has set out nondiscrimination as the policy of the State, an order mandating that employers take certain actions cannot be viewed as merely one step further along a continuum. In Matter of Broidrick (supra), because only specific administrative *379 regulations were in issue, only those regulations, and not the mayoral order in which they were grounded, were struck by this court as being in excess of the legislative authorization. This led some (although not the courts below) to conclude, mistakenly, that the defect could be cured by different regulations which did not prescribe specific percentage quotas. The difficulty in Broidrick, as here, is not the means employed by the executive to impose affirmative action in hiring practices, but rather that the executive attempted it at all. At the same time we note the distinction, carefully preserved in Broidrick, between affirmative action in hiring practices, and executive affirmative action which ”only would enlarge the pool of persons eligible for employment based on discrimination-free merit selection “ (Matter of Broidrick v Lindsay, 39 NY2d 641, 649, supra.;). In sum, we would emphasize that the desirability of adopting a policy of affirmative action in hiring practices, and mandating the same, is not a prerogative of the executive, but rather of the legislative branch and it is to those bodies that persons seeking to impose affirmative action should direct their attention. Fuchsberg, J. (Dissenting). Because I believe that neither the Governor's Executive Order No. 45Executive Order No. 45 nor the 1977 Rules and Regulations promulgated on behalf of the Mayor of the City of New York in implementation of the latter's Executive Order No. 71Executive Order No. 71 constitutes an excessive exercise of executive power, because in my opinion the majority's reading of Matter of Broidrick v Lindsay (39 NY2d 641) to strike down each of these measures impermissibly narrows the meaning of that decision, and because the net effect of the court's determination today is to prevent the heads of State and local governments from taking lawful steps toward the realistic enforcement of our strong legal and societal policies against race and sex discrimination, I must vote to reverse in both cases. By way of preface, since the majority's nullification of the two executive actions stems from their inclusion of a requirement for ”affirmative action “, in articulating my views I think it best to take the scare factor out of that phrase. Though subsuming a broad range of policies and programs that have been introduced at State and Federal levels, ”affirmative action“ is basically a concept representative of the conviction *380 that full equality of employment opportunity cannot be achieved simply by decrying discrimination or even by decreeing that discrimination cease; rather, it proceeds on the assumption that, unless these are accompanied by positive or ”affirmative “ steps to speed the elimination of the stubborn vestiges of discrimination, this noxious condition will continue to feed on itself, and the goal of equal opportunity will remain beyond reach. “Affirmative action”, therefore, contemplates measures such as the reinstatement or upgrading of those who have been discriminated against, the recruitment of members of disadvantaged groups and the opening up of opportunities for attaining vocational skills that will enable them to compete in the labor market. While, at times, impatience with the pace of acceptable © 2020 Thomson Reuters. No claim to original U.S. Government Works. 3
