New York Public Personnel Law: Appellate Division, Fourth Department, hold employer’s decision not to hire an individual because the individual was pregnant a form of unlawful discrimination

July 13, 2015

Appellate Division, Fourth Department, hold employer’s decision not to hire an individual because the individual was pregnant a form of unlawful discrimination

Appellate Division, Fourth Department, hold employer’s decision not to hire an individual because the individual was pregnant a form of unlawful discrimination

2015 NY Slip Op 05384, Appellate Division, Fourth Department

A part-time school guidance counselor [Counselor] alleged that the School District [District] had discriminated against her on the basis of "sex/pregnancy" when it declined to renew her employment contract shortly after learning that she was pregnant.

Counselor was employed as a part-time counselor for the District for the 2011-2012 school year and the District invited her to apply for a position for the following school year. Counselor did apply for continued employment with the District and also requested a "pregnancy/disability leave" from the end of August 2012 through January, 2013. Counselor said that she was then notified that she would not be hired because of her anticipated absence.

Counselor filed a complaint with the State Division of Human Rights [SDHR] alleging the District had unlawfully discriminated against her on the basis of "sex/pregnancy." SDHR found “no probable cause” and dismissed Counselor’s complaint without a hearing.

Counselor commenced a CPLR Article 78 proceeding seeking to annul SDHR finding that there was no probable cause to believe that the District had unlawfully discriminated against her. Supreme Court granted Counselor’s petition and remitted the matter to SDHR for a hearing. The Appellate Division affirmed the lower court’s ruling.

The court said that "Where, as here, a determination of no probable cause is rendered [by SDHR] without holding a public hearing pursuant to Executive Law §297(4)(a), the appropriate standard of review is whether the determination was arbitrary and capricious or lacking a rational basis." However, explained the Appellate Division, “[t]he complainant's factual showing must be accepted as true on a probable cause determination.” Although the court’s “standard of review” is highly deferential to SDHR’s determination, in this instance the Appellate Division agreed with Supreme Court that SDHR’s determination "was not rationally based upon the evidence presented."

Executive Law §296 prohibits an employer from refusing to hire or employ an individual based on the individual's gender. Rejecting the District’s argument that it decided not to rehire Counselor because of her unavailability and its concern for continuity of counseling services for its students, the Appellate Division, noting that Counselor would be unavailable to work because of her pregnancy, said “we conclude that discrimination could be inferred from the record before us.”

The court observed that the District had relied on Roslyn Union Free Sch. Dist. v State Div. of Human Rights, 72 AD2d 808, in support of its argument that it did not unlawfully discriminate against Counselor. However, said the Appellate Division, “to the extent that Roslyn holds that a decision not to hire an individual because the individual is pregnant is not a form of discrimination,” it declined to follow it.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_05384.htm

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NYPPL Blogger Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard. Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.