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

50 A.D.2d 381, 378 N.Y.S.2d 720, 1975 N.Y. App. Div. LEXIS 11482, 11 Empl. Prac. Dec. (CCH) 10,687, 12 Fair Empl. Prac. Cas. (BNA) 129

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 31, 1975
• Status: Published

Opinions

Cohalan, J.

The main issue raised by this proceeding is whether the petitioner, a private employer, is obligated to provide the same benefits for pregnancy-related disabilities as are granted for other temporary disabilities, despite the exclusion of pregnancy-related disabilities in the Disability Benefits Law (Workmen’s Compensation Law, art 9) and in the Employee Benefit Plan of the petitioner. As interpreted in cases involving schools and school teachers, the overwhelming weight of authority mandates that the benefits be provided. We think the reasons stated in those cases have no instant application, as will be discussed below.

This proceeding had its genesis in the complaint of a "desk job” clerk of the petitioner (Company). A married woman, she became pregnant and, in writing, requested a six-month voluntary leave of absence. At the same time she orally asked for her four weeks of accumulated sick leave. The former request was granted, the latter denied. However, she was paid for three weeks of accrued vacation time.

In due course, and at almost full term, her child was delivered by Caesarean section. Nothing in the record indicates that the manner of delivery was vital to her survival or to that of her child.¹ Her coverage under the medical plan then in force was continued by the Company during her leave of absence.

Thus, her sole formal complaint is that she was denied the four weeks of sick leave.² As to this item, the Company contends that any payments made under its Employee Benefit Plan are completely voluntary on its part. There is no bargaining compulsion and no contract of any kind with any employee group as to this item. Under its "general provisions”, the plan states:

"2. Plan is not a Contract. Neither the establishment of the plan nor of these rules and regulations shall be held or construed as a contract or consideration for employment, nor binding the Company at any time to institute or continue the payment of benefits hereunder, nor shall it interfere with the Company in the discharge of any employee or in its treatment of an employee.”

Under article VII (Sick Pay), the plan provides:

"The Company’s Employee Benefit Plan provides sick pay benefits in addition to such benefits for which provision is required to be made by the New York State Disability Benefits Law (Statutory Benefits).

"As to Statutory Beneñts

"The Company is self-insured to provide Statutory Benefits to eligible employees. An employee becomes eligible when he has been employed for four or more consecutive weeks including previous employment by covered employers. These benefits are payable for and commence with the eighth consecutive day of disability as defined in the law * * * .

"The maximum duration of benefits is 26 weeks in any period of 52 consecutive calendar weeks or 26 weeks in any one period of disability.

"At present the Company is assuming the entire cost of providing Statutory Benefits and no contributions are required from employees.

"As to Beneñts under the Employee Beneñt Plan

"Employees entitled to Statutory Benefits in respect of any given absence will have their Benefits under the Plan reduced by the amount of such Statutory Benefits.”

The mention of statutory benefits—as stated and iterated in the plan at article VII—has reference to section 205 of the Workmen’s Compensation Law.

As germane, that section reads:

"No employee shall be entitled to benefits under this article: * * *

"3. for any period of disability caused by or arising in connection with a pregnancy [with an exception not at issue]”.

The legislative purpose of this exclusion was that in order "to provide the protection deemed necessary to the workers of the State at reasonable cost, disabilities arising from pregnancy have been excluded.” (1948 Report of the New York State Joint Legislative Committee on Industrial and Labor Conditions, NY Legis Doc 1949, No. 67, p 44.)

Thus, it is not gender, as such, which impelled the Legislature to act. Rather, it was, and is, the prohibitive cost which dictated the exclusion. If included it might well have been considered reverse discrimination as male employees and women beyond their childbearing years would have had to support this program even though they could not hope to gain any benefit from it.

The response by the complainant to this unambiguous statute is that it is discriminatory in nature and that, as to maternity benefits, it has been impliedly repealed by the Human Rights Law (Executive Law, art 15) and specifically by section 296 thereof, which read at the time in question:

"Unlawful discriminatory practices.

"1. It shall be an unlawful discriminatory practice:

"(a) For an employer, because of the age * * * or sex of any individual * * * to discriminate against such individual in compensation or in terms, conditions or privileges of employment.”

This argument is rebutted by the facts. Article 9 of the Workmen’s Compensation Law (Disability Benefits Law) has been in effect since April 13, 1949 (L 1949, ch 600); subdivision 3 of section 205 has been a part of that law since its enactment.

Article 15 of the Executive Law (Human Rights Law) came into being by virtue of chapter 800 of the Laws of 1951. It derives from the Executive Law of 1909, section 296 of which was added by section i of chapter 118 of the Laws of 1945. However, the words "or sex”, as a possible subject of discrimination, were not a part of the law until the Legislature inserted them (L 1965, ch 516, § 1), effective September 1, 1965.

From the time of the enactment of the Disability Benefits Law in 1949, until 1965 when the words "or sex” were added, 36 bills to repeal the exclusion of pregnancy were introduced in one or both houses of the Legislature—all without success. From 1965 to date 12 similar bills have been introduced—with a similar lack of success.

With these statistics before us it is difficult to credit the argument of implied repealer. It would impugn the collective intelligence of the Legislature to infer that its left hand did not know what its right hand was doing. From the outset, that body has been able to distinguish the separate and different goals of the two statutes, i.e., payment for off-the-job contracted illnesses as to the one, and equality of status as to the other.

With noted exceptions (see Workmen’s Compensation Law, § 201, subd 5), every employer, large or small, must carry disability benefits insurance for his employees. No one would seriously suggest that a merchant so obligated, and employing three or four persons, including one nubile woman, was pursuing a discriminatory practice if he refused to pay maternity benefits to the female employee if she were to become pregnant. Is it not then an act of discrimination against a large corporation employing many women of childbearing age if it is forced, under the sanctions of the Human Rights Law, to assume such a financial burden? I think so. An act of corporate kindness should not be transmogrified by administrative fiat into a fixed obligation even beyond the intent of the donor.

I now turn to a consideration of the cases involving pregnancy in school-related matters. Before doing so, however, it should be noted that teachers, unlike private employees, do not come within the provisions of the DBL (see Workmen’s Compensation Law, § 201, subds 5 and 6). Teachers are covered by the Education Law (see section 3005-b as to teachers outside the City of New York and sections 2554 [subd 13, par b] and 2573 [subd 12] as to those within the city).

In three cases involving boards of education recently decided by this court (Board of Educ. of Union Free School Dist. No. 2, East Williston, Town of North Hempstead v New York State Div. of Human Rights, 42 AD2d 49, affd 35 NY2d 673; Board of Educ. of Union Free School Dist. No. 22, Towns of Oyster Bay & Babylon v New York State Div. of Human Rights, 42 AD2d 600; Matter of Board of Educ. of City of N. Y. v State Div. of Human Rights, 42 AD2d 854, affd 35 NY2d 675), the question posed did not reach the issue now before us. Thus, in the East Williston case, Mr. Justice Hopkins stated (42 AD2d, at p 52):

"The true issue before us then is whether the petitioner’s policy has a reasonable foundation in requiring a teacher to absent herself, after four months’ pregnancy, though the teacher has both the desire and ability to continue.” The Oyster Bay & Babylon case adopted this rationale, citing the East Williston case. The City of New York case also cited East Williston; we there said, in pertinent part (pp 854-855): "We are of the opinion that the determination that petitioner is guilty of discriminatory practices in its maternity leave policies has been established and that a pregnant teacher who goes on maternity leave should be permitted to use sick leave and sabbatical leave to the same extent as other teachers suffering from a temporary physical disability for the duration of such disability” (emphasis supplied).

In Union Free School Dist. No. 6 of Towns of Islip & Smithtown v New York State Human Rights Appeal Bd. (35 NY2d 371) the issue differed from the one which we face. There, as Judge Jones stated (p 378): "The new aspect presented in this record is whether a different and more restricted standard is to be applied under the Human Rights Law when the personnel policy in question was the product of bilateral negotiations under the Taylor Law (Civil Service Law, art. 14). The personnel policy involved here would single out childbirth among other physical conditions for special treatment in fixing terms of compensation and of return to employment thereafter. Appellant contends that when the personnel policy, rather than having been unilaterally promulgated by the employer as in Board of Educ., East Williston and Board of Educ., City of New York (supra) has been reached under the auspices of the Taylor Law, it may then be struck down only on proof that the policy is 'patently and palpably discriminatory’ ”.

Judge Jones went on to state, on the same page: "We now hold that personnel policies and practices are no less subject to the constraints of the Human Rights Law because they are the product of negotiations conducted under the Taylor Law.”

In the Islip & Smithtown case (supra), our Court of Appeals distinguished the case of Geduldig v Aiello (417 US 484). We, however, deem the latter case to be applicable at bar for the reason that it deals with the cost factor of California’s disability insurance system, as the Disability Benefits Law deals with the identical problem in our State. Moreover, we would make no distinction between normal and so-called abnormal pregnancies, and again point out that there is nothing in the record to indicate the necessity of delivery by Caesarean section in this case.

The argument has been advanced that a man who must undergo a prostatectomy would be eligible for disability benefits. If so, and by a parity of reasoning, the argument continues, what justification is there for denying a woman pregnancy-related benefits? The answer is that there is no true basis of comparison. Prostatitis is a morbid, inflamed condition of an organ of the body over which the male has no control. Pregnancy is caused by the introduction of spermatozoa from outside the female body to produce a tumescent condition within. The first is involuntary, the second volitional.

A better example is that of vasectomy vis-á-vis tubal ligation. As to the latter, the Appellate Division, Third Department, decided in Matter of Fullerton v General Motors Corp., Rochester Prods. Div. (46 AD2d 251) that a woman who opted for tubal ligation (sterilization) was not entitled to disability benefits. In construing section 201 (subds 8 and 9) of the Workmen’s Compensation Law, Mr. Justice Sweeney, writing for an unanimous court, noted (p 252):

"The language of the statute is markedly clear. It provides for benefits where the disability is caused by an accidental injury, disease, infection or illness. Manifestly, claimant’s disability does not come within the first three mentioned categories. Our issue, therefore, further narrows to whether a purely elective bilateral tubal ligation is an 'illness’ within the limits of this statute. We think not. The legislative purpose of article 9 of the Workmen’s Compensation Law (Disability Benefits Law) was to extend protection to an employee unable to perform his ordinary work because of disability not incurred within the course of his employment. The Legislature, however, by this statute, has prescribed, as it had a right to do, precisely those disabilities which were contemplated. We must apply the statute as written and not as we might believe it should have been written. (See People v Olah, 300 N. Y. 96.)

"In considering the Disability Benefits Law, the Court of Appeals stated that we should take it 'as we find it, and leave for legislative attention any seeming inequities, or unevenness of coverage.’ (Matter of Knapp v. Syracuse Univ., 308 N. Y. 274, 275.) Statutory language which is plain and unambiguous should be construed in its natural and most obvious sense.”

Substitute, in the first paragraph, the words "pregnancy-related disability” in place of "elective bilateral tubal ligation” and it fits the instant case "to a T”.

Accordingly, the order of the Human Rights Appeal Board should be vacated and the cross motion for enforcement of that order should be denied.

1 . The complainant testified that she became pregnant sometime in December, 1971. If we assume it to have been on December, 31, 1971, the birth on October 1, 1972 was 275 days later.

2 . She also testified that she was aware of the Employee Benefit Plan and knew that maternity benefits were not included in it.