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 methods has led some to resort to quotas and programs of reverse discrimination, concepts quite different from equal opportunity (cf. Alevy v Downstate Med. Center, 39 NY2d 326, 336-337), it is not to be assumed that a program of affirmative action necessarily encompasses preferential treatment (see Matter of Broidrick v Lindsay, 39 NY2d 641, 646-648, supra.;). The rules and regulations in Broidrick were properly struck down because they did. The executive actions here do not and, thus, are not vulnerable to such attack. On analysis, in their own way, the executive actions before us today were but modest attempts to deal with existing inequalities of opportunity. Each recognized that discrimination in employment on the part of public contractors adversely affects the costs of public works by, among other things, decreasing the pool of available labor. Both were directed against what had been found to be a “specific” pattern of discrimination infesting the building and construction industry (Matter of State Comm. for Human Rights v Farrell, 43 Misc 2d 958, 960; see Fullilove v Kreps, 584 F2d 600, 606, cert granted 441 US 960; Equal Employment Opportunity Comm. v Local 638, 532 F2d 821, affd as mod 565 F2d 31; Rios v Enterprise Assn. Steamfitters, Local No. 638, 501 F2d 622). Both had as their aim simply to make the industry more responsive to its obligations as regards the employment rights of minority and female workers. For his part, the Governor acted pursuant to his constitutional authority ( NY Const, art IV, §3) to see to the faithful execution of our laws and to specify terms and conditions of contracts entered into by the State. In this tenor, Executive *381 Order No. 45 *381 Executive Order No. 45 required that all State contracts include a provision incorporating a program that would insure that employees or applicants “are afforded equal employment opportunities.” To allow the contractors flexibility, the order did not spell out precise requirements, except to indicate the program was to be one “to achieve goals and timetables designed to reflect adequate utilization of minority group persons and women”. Instead, it set up an Office of State Contract Compliance (OSCC) within the State Division of Human Rights, the agency already charged by the Legislature with the implementation of antidiscrimination laws. The OSCC was commissioned to develop and enforce appropriate contract terms designed to effectuate the order (9 NYCRR 3.45). No terms had been issued by the OSCC by the time the petitioners, as representatives of employers and unions in the construction industry, commenced this article 78 proceeding. There was, therefore, no reason to assume that, when issued, the “goals” and “timetables” would not be ones directed at the undisputably permissible goal of attracting qualified minority applicants, rather than granting some form of blunderbuss preferential treatment to minorities and women in the potential labor market. In particular, especially in the light of the Broidrick guidelines, nothing compelled the conclusion that a fixed percentage or quota formula would be imposed. As for the city, the rules and regulations here challenged were promulgated for the Mayor by his city administrator. Their issuance was authorized by Mayoral Executive Order No. 71Executive Order No. 71, which, undisturbed by Broidrick and with seeming uncontestability, declared it the policy of the city to insure that employment of qualified persons on municipal contracts be free from discrimination on account of race, creed, color or national origin (and, by later amendment, of sex and age). The rules at issue replaced an earlier set that had been struck down by Broidrick as an unconstitutional application of Order No. 71 because they had required contractors to commit themselves to employ specified percentages of minority workers by specified dates on all their construction projects, whether public or private and whether funded by the city or not. The new regulations carefully avoided these pitfalls. While they called upon each construction contractor to submit a proposed program containing specific steps and actions which, *382 if diligently applied, could be expected to result in employment opportunities substantially equivalent to minority representation in the available work force, they were made applicable only to city and city-assisted construction contracts. Moreover, failure to achieve an anticipated goal was to bring no automatic imposition of sanctions, but instead would occasion review, opportunity for explanation and, where necessary, modification. On such review, lack of progress was to be but a factor in determining whether the efforts to apply the employer's program had been carried out in good faith. © 2020 Thomson Reuters. No claim to original U.S. Government Works. 4
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 Furthermore, neither the contractor nor the city were left to flounder in structuring a proposed plan, for the rules indicated that the employer's program could include provision for notifying relevant labor, minority and community referral agencies and city and State employment agencies of job openings on its city projects; maintaining files containing information on female and minority persons referred to the contractor for employment together with the action that had been taken with respect to their applications; disseminating its Equal Employment Opportunity (EEO) policy within its own organization as well as to subcontractors and suppliers; enlisting the help of minority and other recruitment and training organizations, news media, trade schools and secondary schools within the City of New York; evaluating women and minority personnel for promotion opportunities and encouraging them to seek such opportunities. As the rules make clear, the idea was to roll back and not to countenance the perpetuation of discrimination. Though raceconscious and sex-conscious, as well they might be if the attitudes and effects engendered by past discrimination were to be addressed in any meaningful way, they did not impose hiring or training quotas or otherwise depart from the principle of merit selection. Indeed, as in the case against the State, the article 78 proceeding mounted against the city pointed to no application of the city's rules and regulations that would in any guise constitute “a cover for the functional equivalent of a quota system” (University of Cal. Regents v Bakke, 438 US 265, 318; violate sound principles against illegal reverse discrimination. United Steelworkers of Amer. v Weber, 443 US 193) or otherwise Far from exceeding the bounds of gubernatorial and mayoral power, as an examination of legislative history emphasizes, *383 these executive actions did no more than give effect to the policies, expressed and implied, of the laws of this State. As early as 1945, the then State Commission Against Discrimination was already empowered to direct the taking of “such affirmative action including (but not limited to) hiring, reinstatement or upgrading of employees” (Executive Law, § 132; emphasis mine). 1 By 1962 and 1963, when the commission had been renamed the State Commission for Human Rights (L 1962, ch 165), the Governor was able to announce that 0 million appropriated by the Legislature for State-sponsored contracts would be awarded in conjunction with a program to increase jobs to help assure realization of equality of job opportunities in New York State and towards which there were to be “positive action to promote equality of opportunity” in the construction industry in recruitment, training and employment (Public Papers of Governor Nelson A. Rockefeller [1963], pp 865-866 [emphasis mine]). The same year a new contract form for State contracting agencies, still in use today, required contractors to “take affirmative action *** [against discrimination because of race, creed, color or national origin] by way of recruitment, employment, job assignment, promotion, upgrading, demotion, transfer, layoff or termination, rates of pay or other forms of compensation, and selection for training or retraining, including apprenticeship and on- the-job training”. (Id;, at pp 935-936 [emphasis mine].) Five years later, in 1968, the legislative revision of the Human Rights Law, in declaring that the purpose of the law was, inter alia, to afford to all citizens “an equal opportunity to enjoy a full and productive life”, spoke in terms of “encourag[ing] programs designed to insure that every individual shall have an equal opportunity to participate fully in the economic *** life of the state” free from discrimination in employment ( Executive Law, § 290, subd 3; § 297, subd 4, par c). The following year an amendment authorized the Human Rights Division to work to increase the employment of members of any minority group exhibiting a disproportionately high unemployment rate (L 1969, ch 458, now codified as *384 Executive Law, § 296, subd 12). 2 And, in 1972, echoing this legislative sentiment, the State Department of Labor issued new regulations pursuant to article 23 of the Labor Law described as intended to prohibit “discrimination based on race, creed, color, national origin [and] sex *** in apprenticeship programs, by requiring affirmative action” (12 NYCRR 600.1 [emphasis mine]). 3 Executive Order No. 45Executive Order No. 45 followed, along what had thus become a well-blazed trail, on the heels of these and other even more practical expressions of support for such policies, including regular legislative appropriations “for State participation in affirmative action programs”. 4 (Cf. Labor Law, §§ 220-e, 815, subd 5; Civil Rights Law, §§ 40-c, 43). Obviously, it embodies an effort to deal with the matters identified by the Legislature as the focus of public concern, and to do so in a manner consistent with State law and public policy. And, certainly no less consonant with the thrust of relevant legislation was the Mayor's Executive Order No. 71Executive Order No. 71, for it carries forward the unequivocal expression © 2020 Thomson Reuters. No claim to original U.S. Government Works. 5
