
    Elaine W. et al., on Behalf of Themselves and All Others Similarly Situated, Appellants, v Joint Diseases North General Hospital, Inc., Respondent, et al., Defendants.
    Argued March 24, 1993;
    decided May 6, 1993
    
      POINTS OF COUNSEL
    
      Joan E. Bertin, New York City, Isabelle Katz Pinzler, Cahill Gordon & Reindel and Oscar G. Chase for appellants.
    I. Defendant’s admitted policy of excluding all pregnant women constitutes explicit gender discrimination. (Matter of Board of Educ. v New York State Div. of Human Rights, 56 NY2d 257; Brooklyn Union Gas Co. v New York State Human Rights Appeal Bd., 41 NY2d 84; Elaine W. v Joint Diseases N. Gen. Hosp., 180 AD2d 525; Orr v Orr, 440 US 268; Automobile Workers v Johnson Controls, 499 US 187; Trans World Airlines v Thurston, 469 US 111; Matter of Bayport-Blue Point School Dist. v State Div. of Human Rights, 131 AD2d 849; Los Angeles Dept. of Water & Power v Manhart, 435 US 702; Arizona Governing Comm. v Morris, 463 US 1073; Board of Educ. v New York State Div. of Human Rights, 42 AD2d 49, 35 NY2d 673.) II. Defendant’s discriminatory policy is unlawful because the State Division of Human Rights has not granted defendant an exemption based on "bona fide considerations of public policy”. (Kahal Bnei Emunim & Talmud Torah Bnei Simon Israel v Town of Fallsburg, 78 NY2d 194.) III. The Court below’s decision must be reversed because defendant neither asserted nor proved that its policy serves "bona fide considerations of public policy”. (Price Waterhouse v Hopkins, 490 US 228; Automobile Workers v Johnson Controls, 499 US 187; Arizona Governing Comm. v Morris, 463 US 1073; Phillips v Martin Marietta Corp., 400 US 542; Trans World Airlines v Thurston, 469 US 111; Western Air Lines v Criswell, 472 US 400; Alexander v Louisiana, 405 US 625; Mississippi Univ. for Women v Hogan, 458 US 718; United States v First Natl. Bank, 386 US 361.) IV. The Court below improperly resolved issues of fact in granting summary judgment to defendant on its defense of medical judgment. (Elaine W. v Joint Diseases N. Gen. Hosp., 180 AD2d 525; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395.)
    
      Bower & Gardner, New York City (Nancy Ledy Gurren, Robert Iscaro and Judith A. Davidow of counsel), for respondent.
    I. The Court below correctly applied a shifting burden of proof in analyzing plaintiffs’ claim under the Executive Law. (Matter of New York City Bd. of Educ. v Batista, 54 NY2d 379; 
      Matter of Pace Coll. v Commission on Human Rights, 38 NY2d 28; Ioele v Alden Press, 145 AD2d 29; Matter of National Basketball Assn. v New York State Div. of Human Rights, 115 AD2d 365, 68 NY2d 644; Matter of Miller Brewing Co. v State Div. of Human Rights, 66 NY2d 937; Brown v General Elec. Co., 144 AD2d 746; Matter of New York Roadrunners Club v State Div. of Human Rights, 55 NY2d 122; United States v University Hosp., 729 F2d 144; Matter of Antonsen v Ward, 77 NY2d 506; City of New York v State Div. of Human Rights [Granelle], 70 NY2d 100.) II. The Court below was correct in its determination that the hospital policy is not facially discriminatory. (Automobile Workers v Johnson Controls, 499 US 187.) III. Appellants improperly argue that the legal standard governing this controversy requires a showing of bona fide considerations of public policy. (Automobile Workers v Johnson Controls, 499 US 187; Price Waterhouse v Hopkins, 490 US 228; Trans World Airlines v Thurston, 469 US 111; Texas Dept. of Community Affairs v Burdine, 450 US 248; Matter of New York Roadrunners Club v State Div. of Human Rights, 55 NY2d 122; Eastern Paralyzed Veterans Assn. v Metropolitan Transp. Auth., 79 AD2d 516; Holly v Pennysaver Corp., 98 AD2d 570; Perino v St. Vincent’s Med. Ctr., 132 Misc 2d 20; Sega v State of New York, 60 NY2d 183; Anderson v Regan, 53 NY2d 356.) IV. Assuming, arguendo, this Court applies plaintiff’s legal standard to this case, North General Hospital is still entitled to summary judgment.
    
      Nadine Taub, of the New Jersey Bar, admitted pro hac vice, and Berle, Kass & Case, New York City (Jean M. McCarroll and Monica J. Bose of counsel), for American Public Health Association, amicus curiae.
    
    No bona fide considerations of public policy justify the hospital’s discriminatory practice. (Koerner v State of New York, 62 NY2d 442; Holly v Pennysaver Corp., 98 AD2d 570; New York State Div. of Human Rights v New York-Pa. Professional Baseball League, 36 AD2d 364, 29 NY2d 921; Automobile Workers v Johnson Controls, 499 US 187; Matter of Hurwitz v New York City Commn. on Human Rights, 142 Misc 2d 214, 159 AD2d 417; Matter of Stefanel Tyesha C., 157 AD2d 322; People v Morabito, 151 Misc 2d 259.)
    
      Lynn M. Paltrow, New York City, Carol E. Tracy, Linda J. Wharton and Susan Frietsche, of the Pennsylvania Bar, admitted pro hac vice, for the Center for Reproductive Law & Policy and others, amici curiae.
    
    I. Throughout American history differences in the reproductive capacity of men and women have provided a primary justification for the subordination of women. (Frontiero v Richardson, 411 US 677; Automobile Workers v Johnson Controls, 499 US 187; Bradwell v The State, 16 Wall [83 US] 130; Muller v Oregon, 208 US 412; West Coast Hotel Co. v Parrish, 300 US 379; Radice v New York, 264 US 292; Hoyt v Florida, 368 US 57; Breedlove v Suttles, 302 US 277.) II. Discriminatory assumptions and negative attitudes against pregnancy render drug treatment virtually unobtainable for pregnant women. III. The hospital’s policy of excluding women solely on the basis of pregnancy violates the clear terms of the New York Human Rights Law. (State Div. of Human Rights v Village of Spencerport, 78 AD2d 50; State Div. of Human Rights v New York State Dept. of Correctional Servs., 61 AD2d 25; Rosenfeld v Southern Pac. Co., 444 F2d 1219; Board of Educ. v New York State Div. of Human Rights, 42 AD2d 49, 35 NY2d 673; Brooklyn Union Gas Co. v New York State Human Rights Appeal Bd., 41 NY2d 84; Union Free School Dist. No. 6 v New York State Human Rights Appeal Bd., 35 NY2d 371; Board of Educ. v New York State Div. of Human Rights, 56 NY2d 257; City of New York v State Div. of Human Rights [Granelle], 70 NY2d 100; Matter of Hurwitz v New York City Commn. on Human Rights, 142 Misc 2d 214, 159 AD2d 417, 76 NY2d 702; Kahal Bnei Emunim & Talmud Torah Bnei Simon Israel v Town of Fallsburg, 78 NY2d 194.) IV. If permitted to stand, the Court below’s decision will seriously weaken the Human Rights Law and have devastating consequences for women. (Matter of Stefanel Tyesha Co., 157 AD2d 322.)
    
      Mayer Brown & Platt, New York City (George W. Madison and Eleanor Jackson Piel of counsel), for The Association of the Bar of the City of New York, amicus curiae.
    
    I. The decision below misinterprets the State’s human rights laws. (Union Free School Dist. No. 6 v New York State Human Rights Appeal Bd., 35 NY2d 371; Matter of Board of Educ. v State Div. of Human Rights, 35 NY2d 675; Brooklyn Union Gas Co. v New York State Human Rights Appeal Bd., 41 NY2d 84; Matter of Board of Educ. v New York State Div. of Human Rights, 56 NY2d 257; American Airlines v State Human Rights Appeal Bd., 50 AD2d 450; Matter of Energy Expo v New York State Div. of Human Rights, 112 AD2d 302; State Div. of Human Rights v Stromberg Carlson Corp., 66 AD2d 990; Matter of Jericho Union Free School Dist. v New 
      
      York State Human Rights Appeal Bd., 97 AD2d 762.) II. Summary judgment should not have been granted to defendant because facts material to the defense’s theory were in dispute. (Millerton Agway Coop. v Briarcliff Farms, 17 NY2d 57; Barrett v Jacobs, 255 NY 520; Elias v Handler, 181 AD2d 656; Giambrone v New York Yankees, 181 AD2d 547; Henderson v City of New York, 178 AD2d 129; Adickes v Kress & Co., 398 US 144; Assaf v Ropog Cab Corp., 153 AD2d 520.) III. The impact of the lower court’s decision will be to authorize denial of needed services to a vulnerable and needy segment of the population, with potentially dire consequences.
   OPINION OF THE COURT

Simons, J.

Plaintiffs instituted this action claiming that defendant Joint Diseases North General Hospital engages in unlawful sexual discrimination by refusing to admit pregnant women to its drug detoxification program. North General conceded it has a policy excluding all pregnant women but sought summary judgment dismissing the complaint, claiming the policy is justified on medical grounds. The hospital was unsuccessful in the trial court but prevailed on appeal. The Appellate Division held that North General’s determination to exclude pregnant substance abusers did not constitute gender-based discrimination but, rather, was "a medical determination based on appropriate treatment for its patients” (Elaine W. v Joint Diseases N. Gen. Hosp., 180 AD2d 525, 527). The matter is before us by our leave and we now reverse. The mere proffering of a medical explanation, when disputed by other evidence, does not validate the hospital’s exclusionary policy. North General must establish at trial that its blanket exclusion of pregnant women is medically warranted.

I

Defendant North General is a voluntary, nonprofit hospital in Manhattan with 190 beds. Fifty of the beds are devoted to an in-patient detoxification program. Plaintiffs are women who were excluded from this program because they were pregnant at the time they sought treatment. North General excludes pregnant women because it believes it lacks the equipment to treat them safely, it has no obstetricians on its staff and it is not licensed to render obstetrical care. The hospital claims that its policy is not discriminatory because all seriously psychotic patients are excluded for similar reasons. In short, North General claims that it is obliged to treat only those it is equipped and staffed to treat and the Human Rights Law should not be used to compel it to do otherwise.

In opposition, plaintiffs contend that the blanket exclusion of all pregnant women is medically unwarranted, that each woman must be assessed individually to determine whether she can be treated safely for substance abuse despite the lack of on-site obstetrical services and that the failure to do so violates this State’s Human Rights Law (Executive Law art 15). Both parties have submitted affidavits of medical experts to support their positions.

II

Article 15 of the Executive Law, known as the Human Rights Law, provides that it is "an unlawful discriminatory practice for any * * * place of public accommodation * * *, because of * * * sex * * *, directly or indirectly, to * * * deny to such person any of the accommodations, advantages, facilities or privileges thereof’ (Executive Law § 296 [2] [a]). When interpreting that section, we have consistently held that distinctions based solely upon a woman’s pregnant condition constitute sexual discrimination (see, e.g., Matter of Binghamton GHS Empls. Fed. Credit Union v State Div. of Human Rights, 77 NY2d 12, 17; Matter of Board of Educ. v New York State Div. of Human Rights, 56 NY2d 257, 261-262; Brooklyn Union Gas Co. v New York State Human Rights Appeal Bd., 41 NY2d 84, 86; Board of Educ. v New York State Div. of Human Rights, 42 AD2d 49, 53, affd 35 NY2d 673; see also, Newport News Shipbuilding & Dry Dock v Equal Empl. Opportunity Commn., 462 US 669, 684 [similarly construing title VII (42 USC § 2000e et seq.) of the Federal statute]). A hospital policy which singles out pregnant women for treatment different from treatment afforded those with other medical or physical impairments is similarly suspect. Unquestionably, North General’s policy discriminates against pregnant women by treating them differently from others solely because they are pregnant and thus it constitutes facial sexual discrimination.

III

Nonetheless, North General’s policy is supportable if the hospital can establish (1) that the blanket exclusion is medically warranted, i.e., that no pregnant woman, regardless of the state of her general health, the stage of her pregnancy, or the severity of her addiction, can be treated safely, or (2) that it cannot, prior to admission, identify with reasonable medical certainty those women who might receive treatment without needing immediate, on-site obstetrical services. We approved such an analysis in an earlier sexual discrimination case in which a school board policy required any pregnant teacher to take an unpaid leave of absence no later than five months prior to her delivery date, regardless of her physical ability to continue teaching (Board of Educ. v New York State Div. of Human Rights, 35 NY2d 673, affg on opn at App Div 42 AD2d 49, supra). The "true issue” in that case, the Appellate Division stated, was whether the pregnancy-based policy could be justified by the school board’s purported objectives (see, Board of Educ. v New York State Div. of Human Rights, 42 AD2d, at 52, supra). Because the policy did not further the stated objective — securing the continuity of competent instruction— we affirmed an order upholding the Human Rights Division’s determination that the discriminatory practice had to stop (see, Board of Educ. v New York State Div. of Human Rights, 35 NY2d 673, affg 42 AD2d 49, supra).

Similarly, the exclusionary policy in this case must be evaluated in light of the explanation offered by North General that it cannot admit pregnant women because it is not equipped, staffed or licensed to provide obstetrical services. A fact finder will have to resolve whether North General’s policy is justified by sound medical opinion.

The burden rests on North General, as the actor drawing distinctions based upon pregnancy, to prove that the policy’s distinctions are based upon medical necessity, not upon generalizations associated with pregnant women (see, Board of Educ. v New York State Div. of Human Rights, 42 AD2d, at 52, supra). That its motives are benign will not relieve it of this burden (see, Automobile Workers v Johnson Controls, 499 US 187, 199-200). Many discriminatory practices develop improperly because of a paternalistic sense of what is "best” for those who are discriminated against (see, State Div. of Human Rights v New York State Dept. of Correctional Servs., 61 AD2d 25, 29). If there is no medical basis for the discrimination, the fact that it was undertaken with good intentions is irrelevant.

Nor can North General sustain its burden by showing that some, or even many, pregnant women should not be treated for substance abuse without the availability of immediate on-site obstetrical services. As the Supreme Court has said: "[e]ven a true generalization about the class is an insufficient reason for disqualifying an individual to whom the generalization does not apply” (see, Los Angeles Dept. of Water & Power v Manhart, 435 US 702, 708). If, as plaintiffs contend, some pregnant addicts can be safely treated despite the lack of immediate on-site obstetrical services, then North General’s policy excluding all pregnant women is unwarranted and the hospital must individually assess each pregnant woman seeking admission to determine whether she can be treated either without the benefit of obstetrical services or with arrangements made to obtain services at nearby, off-site facilities (see, Matter of State Div. of Human Rights [Granelle], 70 NY2d 100, 107). But we emphasize that if North General establishes it is medically unsafe to treat pregnant women at its facility, either because all pregnant addicts require immediate on-site obstetrical services or because it cannot be predicted with reasonable medical certainty which ones might require such services, the Human Rights Law does not compel it to do so.

Accordingly, the order of the Appellate Division should be reversed, with costs, and the cross motion of defendant Joint Diseases North General Hospital, Inc. for summary judgment denied.

Chief Judge Kaye and Judges Titone, Hancock, Jr., and Smith concur; Judge Bellacosa taking no part.

Order reversed, etc. 
      
      . The term "place of public accommodation” includes "clinics” and "hospitals” (Executive Law § 292 [9]).
     
      
      . A valid generalization might persuade the Human Rights Division to grant an exemption for "bona fide considerations of public policy” under Executive Law §296 (2) (b), but North General has not applied for an exemption and a generalization may not serve to validate prohibited discrimination.
     