48 A.D.2d 753 | N.Y. App. Div. | 1975
Proceeding pursuant to section 298 of the Executive Law to review an order of the State Human Rights Appeal Board, dated January 10, 1975, which modified and, as so modified, affirmed an order of the State Division of Human Rights, dated June 18, 1974, and cross motion by respondent to enforce the order of the appeal board. The employment of Gregory C. Wilson as a food server in petitioner’s dining facility was terminated on July 18, 1972 under circumstances and for reasons identical with those described in Matter of Guardian Capital Corp. v New York State Div. of Human Rights (46 AD2d 832). Like the complainant Plebani in that case, Wilson was not fired for any deficiency in the performance of his duties, but solely because petitioner had decided to replace its staff of waiters with waitresses. Wilson complained that this action amounted to proscribed sex discrimination under section 296 of the Executive Law and a hearing was thereafter conducted by respondent on November 19, 1973. Respondent’s order of June 18, 1974 issued as a result of that hearing, found that petitioner had violated that section and directed it to take certain affirmative remedial action. With a modification not presently challenged, the State Human Rights Appeal Board affirmed that order on January 10, 1975 and this proceeding ensued. Petitioner contends that Wilson’s complaint was not timely filed within one year of the alleged discriminatory practice (Executive Law, § 297, subd 4). However, the record contains both documentary and testimonial proof supporting the determination that the complaint was duly filed with respondent on July 10, 1973. Petitioner also attacks the substantive determination which disallowed its claimed bona ñde occupational qualification exception. While our prior decision in Matter of Guardian Capital Corp. (supra) deliberately avoided consideration of whether such an exception.could ever.be predicated upon objective standards of business profitability, it does stand for the proposition that petitioner there failed to produce sufficient evidence to establish any exception as it related to the waiter Plebani. Since the circumstances in regard to Wilson’s termination are identical and petitioner did not adduce any significantly different financial proof at the hearing on this complaint, Matter of Guardian Capital Corp. (supra) must control our decision of this proceeding on that issue. Petitioner raises one other matter worthy of comment, namely, that it has been prejudiced by respondent’s delays in processing the Wilson complaint which was filed after respondent had already found unlawful discrimination existed in the case of Plebani. Although Wilson’s hearing was completed on November 19, 1973, respondent issued no determination thereon until June 18, 1974, well after appeal board resolution of the Plebani complaint. In addition, the appeal board, having already decided
