
    Brooklyn Union Gas Company, Respondent, v New York State Human Rights Appeal Board et al., Appellants. American Airlines, Inc., Respondent, v State Human Rights Appeal Board et al., Appellants. State Division of Human Rights, Respondent, v Crouse-Irving Memorial Hospital, Appellant.
    Argued October 18, 1976;
    decided December 20, 1976
    
      
      Ann Thacher Anderson and Beverly Gross, New York City, for New York State Division of Human Rights, appellant in the first above-entitled proceeding.
    
      John E. Murphy and Harry G. Hill, Brooklyn, for respondent in the first above-entitled proceeding.
    
      Rosalind S. Fink, Cecelia H. Goetz and Susan B. Lindenauer, New York City, for Special Committee on Women’s Rights of the New York County Lawyers’ Association, amicus curiae.
    
    
      Ann Thacher Anderson and Beverly Gross, New York City, for State Division of Human Rights, appellant in the second above-entitled proceeding.
    
      James B. McQuillan, New York City, respondent in the second above-entitled proceeding.
    
      John F. Lawton, Syracuse, for appellant in the third above-entitled proceeding.
    
      Ann Thacher Anderson and Beverly Gross, New York City, for respondent in the third above-entitled proceeding.
    
      David L. Benetar, Eugene D. Ulterino and Stanley Schair, New York City, for New York Chamber, Associated Industries of New York State, Inc., and another, amici curiae.
    
    
      Edward Silver, Morton M. Maneker, Sara S. Portnoy and Stephen E. Tisman, New York City, for American Telephone & Telegraph Company and others, amici curiae.
    
    
      Susan C. Ross, Kathleen Willert Peratis, Melvin L. Wulf and Eve Cary, New York City, for American Civil Liberties Union and another, amici curiae.
    
   Jones, J.

We hold that the provisions of subdivision 3 of section 205 of our State’s Disability Benefits Law do not operate to shelter employment practices in the private sector that would otherwise be impermissibly discriminatory under our Human Rights Law. The imperative of the latter overrides the permissiveness of the former.

We have held that an employment personnel policy which singles out pregnancy and childbirth for treatment different from that accorded other instances of physical or medical impairment or disability is prohibited by the Human Rights Law (Union Free School Dist. No. 6, Towns of Islip & Smith-town v New York State Human Rights Appeal Bd., 35 NY2d 371; Board of Educ. v New York State Div. of Human Rights, 35 NY2d 673; Matter of Board of Educ. v State Div. of Human Rights, 35 NY2d 675). In each of these cases the employment was in the public sector and we concluded that a practice of differentiated treatment of pregnancy-related disability came within the statutory ban.

In the present cases we confront conceptually indistinguishable personnel practices but now for the first time the employment is in the private sector. This is said to call for a different consequence because the assertedly discriminatory practice is with respect to benefits within the ambit of the Disability Benefits Law (DBL), which is applicable to private but not to public employment. Under the DBL, disability "caused by or arising in connection with a pregnancy” is excepted from the minimum benefits mandated by that law (§ 205, subd 3). We are urged to hold that the provisions of the DBL rather than those of the Human Rights Law (HRL) establish the minimum performance to be required of private employers—in effect that compliance with the minimum standards of the DBL will excuse failure to comply with the mandate of the HRL. We reject this conclusion.

There is an evident incongruity between the DBL and the HRL, and the determinative issue is which law shall be held to be operatively controlling. Initially we note that the DBL (Workmen’s Compensation Law, art 9), adopted in 1949, was enacted as socioeconomic legislation designed to assure economic support for working men and women temporarily unable to continue their employment because of sickness or injury unconnected with that employment, and thus to bridge the gap between workmen’s compensation and unemployment insurance (see Matter of Flo v General Elec. Co., 7 NY2d 96, 99; Report of Joint Legislative Committee on Industrial and Labor Conditions, NY Legis Doc, 1949, No. 67, p 44). The new statute fixed a floor, not a ceiling; it contained no prohibition against granting disability benefits in excess of those mandated by the DEL, thereby to supplement and to exceed the legislatively mandated minimum. Public employers were not required to conform to the requirements of the DEL (§ 201, subd 4) although they were authorized voluntarily to elect to be covered (§ 212, subd 2). Various factors, including considerations of the cost of providing benefits, went into the determination of benefit coverage and benefit levels (see Report of Joint Legislative Committee on Industrial and Labor Conditions, NY Legis Doc, 1949, No. 67, p 44).

In 1965 the Human Rights Law (Executive Law, art 15) was amended to prohibit discrimination in employment on account of sex. The new law laid down a blanket proscription applicable to all employers, public and private, with more than three employees (Executive Law, § 292, subd 5); its objective was quite different from, though not necessarily at odds with, the objective of the DEL. "It shall be an unlawful discriminatory practice * * * For an employer * * * because of the * * * sex * * * of any individual * * * to discriminate against such individual in compensation or in terms, conditions or privileges of employment.” (Executive Law, § 296, subd 1, par [a].)

In the effort to reconcile the HRL and the DEL much attention has been devoted in the courts below to the principle and mechanics of the so-called doctrine of "implied repeal”. In our view it advances neither analysis nor comprehension to treat the statutory relationship of the 1965 HRL to the 1949 DEL in the category of implied repeal. Indeed argument in that formulation has been abandoned by the Human Rights Division in our court. However the issue may be verbalized, the question is whether the earlier and still existing sections of the DEL now relieve private employers from the necessity of compliance with the mandate of the HRL. It does not have to be concluded that the HRL articulates a superior command, or that it reflects a worthier public policy than does the DEL; it suffices if it be recognized that the HRL expresses a different command.

Analysis of the statutory predicament we confront may be aided by resort to another discipline and to the geometric concept of "skew lines”—two nonparallel lines which do not intersect however far extended and which accordingly do not lie in the same plane. So, too, here there is no collision between the HRL and the DEL; they pass each other without intersection. Each law is cast in terms of minimum requirements, but from different perspectives. As in other instances of concurrent independent minima, one set of minimum requirements will be operative in one circumstance, the other set in another circumstance. That this is so involves no contradiction or logical difficulty. Thus, at present for employers with three or fewer employees, the operative minimum is only that of the DEL; for all others it is that of the HRL. Or by way of another perspective, if the HRL were to be repealed —a contingency realistically unthinkable, but perhaps illustratively useful—the DEL would once again become operative for all covered employment without the necessity of re-enactment. We do not hold, then, that the HRL struck down the DEL; rather in areas within the reach of both statutes the HRL rendered the DEL dormant. In sum, the DEL and the HRL each lay down minimum demands on employers. Whichever statute imposes the greater obligation is the one which becomes operative. In the cases before us it is the HRL.

To determine whether the DEL survived the enactment of the 1965 amendment to the HRL, or whether the latter impliedly repealed the former, or whether, as we hold, the two statutes are to be read together as resulting in the imposition of two concurrent independent minimum standards is no arrogation of a legislative prerogative. It is rather, whatever may be the outcome, the ordinary discharge of a familiar judicial responsibility. There can be no escape from what the dissent characterizes as the "ranking of statutes” if it is thereby intended to refer to the fact that the provisions of either the HRL or the DEL must be held to be operative. The dissent would hold that the DBL sets the operative standard; we hold that in this instance it is the HRL.

The private employers argue that it is significant that the pre-existing differentiated treatment permitted with respect to pregnancy disabilities under the DBL was not prohibited by explicit provision in the 1965 amendment of the HRL. This contention misconceives the thrust and design of the HRL; it was intended as a blanket proscription. Surely it cannot be accepted that each discriminatory practice in use in 1965, whether existing by legislative grace or in consequence of employment custom or usage, should have been marked for explicit demise. Indeed, no discriminatory practice was identified—the very purpose of the HRL was by blanket description to eliminate all forms of discrimination, those then existing as well as any later devised. To contend that, absent explicit condemnation, any pre-existing discriminatory practice which might be said to have had legislative blessing prior to 1965 was assured continued acceptability would be largely to emasculate the new statute, intended as it was to eradicate all discrimination. What is significant is the fact that with the means so readily available to it the Legislature chose not to exempt the benefits commanded by the DBL from the prohibition of the HRL. That, as the dissent points out, there was specific tailoring with respect to certain exceptions underscores the point.

We agree with the dissent that there are differences, significant economic and policy differences, between public and private employment. We agree, too, that, absent issues of constitutional dimension (of which there are none with respect to the question now before us), the Legislature may take such differences into account in making different provision with respect to the two types of employment. Indeed that is what it did in the instance of disability benefit standards. Contrariwise, and this is critical in our view, this is precisely what the Legislature did not do when it enacted the Human Rights Law and particularly when in 1965 it added sex as an impermissible basis for discrimination. In the absence of a clearly expressed and explicitly manifested legislative intention we could not accept the conclusion that employees in the private sector are to be permitted to suffer discrimination from which employees in the public sector are protected.

It remains to make two other observations. In the first place, with an awareness of the realities of legislative activity and inactivity and particularly the variety of reasons which may be ascribed thereto, we attach no determinative significance to the failure of persisting attempts at explicit legislative integration of these two statutes. Questionable as may be any reliance on legislative inactivity, we would distinguish instances in which the legislative inactivity has continued in the face of a prevailing statutory construction. Thus, "[wjhere the practical construction of a statute is well known, the Legislature is charged with knowledge and its failure to interfere indicates acquiescence” (Engle v Talarico, 33 NY2d 237, 242). Such is not the circumstance here, however, for it is not until the announcement of our decision in the present cases that there may be said to be a final judicial determination as to the operative relation between the Disability Benefits Law and the Human Rights Law, with respect to which future inactivity may someday arguably be said to be significant.

Second, we set aside the spectres of assertedly prohibitive cost predicted to accompany any provision of equal benefits for pregnancy-related disability. A court cannot responsibly be wholly indifferent to the economic impact likely to attend its decisions, but neither can the prospect of financial impact dictate the judicial outcome. We do not doubt that the eradication of sexual discrimination, as well as of impermissible discrimination in other categories, will normally be expensive at least in the short run. We would violate our judicial responsibility, however, were we to accept the proposition pressed on us by some that while implementation of the HRL may proceed apace where cost can be said to be acceptable, some erosion of the blanket prohibition must be tolerated where compliance may be expected to work serious economic distress. The very proper relevance of cost consideration enters the picture when determinations are to be made as to the particulars of implementation of the statutory mandate. In its presentation to us on these appeals the Human Rights Division acknowledged its awareness of very great responsibility in this regard.

Finally, entirely aside from the core issue in these cases as to whether the provisions of the DBL operate to cut back what would otherwise be the responsibility of the employers under the HRL, in two of the cases there was impermissible discrimination in the denial of sick leave, a benefit area outside the scope of the DBL. In both Brooklyn Union Gas and CrouseIrving, the commissioner determined that denial of sick leave benefits constituted impermissible discrimination in the circumstances. Accordingly, quite apart from any question as to the impact of the DBL, the orders of the Human Rights Appeal Board should be sustained to the extent that payment of sick leave was directed. In cases in which the DBL was not involved we have previously held that a personnel policy which singles out pregnancy and childbirth for treatment different from that accorded other forms of disability is prohibited by the HRL (see authorities cited, p 86).

In Brooklyn Union Gas and in American Airlines, the respective orders of the Appellate Divisions should be reversed, and the orders of the Human Rights Appeal Board confirmed; in Crouse-Irving the order of the Appellate Division should be affirmed.

Chief Judge Breitel (dissenting).

I dissent and would affirm the orders of the Appellate Division in the Gas Company and the Airlines cases, and reverse the order in the Hospital case and annul the determination.

The General Elec. Co. case, decided recently by the United States Supreme Court (General Elec. Co. v Gilbert, 429 US 125), of course, is not determinative or even influential in consideration of the issues in these appeals. General Elec. involved a different statute and a disability insurance program not affected, in any way, by any Federal statute concerned with disability insurance for employees in either public or private employment. On the other hand, these appeals arise from the State statute governing discrimination, the Human Rights Law (Executive Law, § 296), and under the State statute providing for disability benefits for disabilities unconnected with employment (Workmen’s Compensation Law, art 9). The two sets of appeals share in common the absence of a constitutional limitation proscribing one result or mandating the other. The last is key to these appeals. The question is purely legislative and the standards to be applied are those appropriate to judicial review and not those appropriate to initiating social-economic policy or projecting, however right, the social-economic preferences of the court’s members.

I dissent not because I accept any license in public or private employment to discriminate invidiously against women. I do so because, as the majority would undoubtedly recognize, and it is but a truism, differences among human beings, either as individuals or as members of a class, may be acknowledged and acted upon without legal or moral vulnerability, provided the action is neither based on nor the effect of a concept of inferiority or the imposition of a disadvantage inappropriate to the difference. More important, I do so because the Legislature, the body responsible for making such policy decisions, has explicitly sanctioned the exclusion of pregnancy benefits from disability benefits coverage.

The Human Rights Law (Executive Law, § 296, esp subd 1, par [a]) makes illegal in private and public employment invidious discrimination based on race, national origin, creed, sex, marital status, disability, and age. But the statute’s proscriptions are not absolute, and it does not purport, as indeed it could not properly, to be a higher law outranking all other statute law.

Exceptions appear in the Human Rights Law itself. The young may be denied access to liquor (Executive Law, § 296, subd 1, par [f]). Neither the very young nor the aged are entirely protected against employment discrimination (see § 296, subd 3-a). Religious institutions may employ only those of their own faith (§ 296, subd 11).

Other statutory exceptions, not expressed in the Human Rights Law, are equally well established. For example, public employee retirement plans discriminate on the basis of age, even for those not yet 65, by imposing a minimum age requirement (Retirement and Social Security Law, § 2, subd 18; § 70, subd a; § 71, subd a). And this court has recognized that even race and ethnic origin may be given a preliminary preference in recruitment or selection in order to accommodate for discriminatory wrongs of the past or present (Alevy v Downstate Med. Center of State of N. Y., 39 NY2d 326, 336-337; see Matter of Broidrick v Lindsay, 39 NY2d 641, 647, 649).

Hence, even if section 296 of the Human Rights Law were the only statute to which the court was bound to look, the issue in these cases would be troublesome. Complicating the matter is the unique character of pregnancy and all its incidents. ,

There is no longer any question that pregnancy-based classifications of the type challenged in these cases pose no constitutional difficulties (Geduldig v Aiello, 417 US 484, 486-487, 496497). And as the Supreme Court has recently decided, pregnancy-related disability exclusions are permissible under title VII of the Federal Civil Rights Act, a similar antidiscrimination statute (General Elec. Co. v Gilbert, 429 US 125, 133-140, supra; US Code, tit 42, § 2000e-2).

To be sure, in cases involving public school employment, this court, interpreting section 296, has held that pregnant teachers may not be compelled either to take a disability leave before they are in fact disabled or to extend their leave beyond the period during which they were actually disabled (Board of Educ., East Williston v New York State Div. of Human Rights, 35 NY2d 673; Board of Educ., Oyster Bay & Babylon v New York State Div. of Human Rights, 35 NY2d 677). Of course, these cases involved archaic discriminations against women, mandating involuntary disemployment, which, on the one hand, regarded obvious pregnancy as indelicate for young children to behold, and on the other hand, paternalistically required mothers to tend their newborn personally. The effect was impermissible, even if unintended or based on outdated concepts of propriety.

Then, in another public school case, this court determined that so long as teachers generally were entitled to use sick and sabbatical leaves to cover periods of temporary physical disability, the same could not be denied if by chance the period of disability were caused by pregnancy (Matter of Board of Educ. v State Div. of Human Rights, 35 NY2d 675). In light of the City of New York (35 NY2d 675) case, it might be argued that denial of disability benefits in this case would work a discrimination between public school employment and other, private, employment. And, in fact, it would. But public and private employment are different in many respects, and the Legislature is entitled to recognize those differences. It has done so.

Because public employment and private employment are different, a discrimination in policy between them is not necessarily an invidious one, obviously the only kind prohibited by the Human Rights Law, although not so expressed. The costs of benefits in public employment are borne by the general taxpayer; they are not in private employment. Most important, private employers, except for regulated monopolies, are competitive with one another, not only within the State but within the Federal Union, and often, for a State like New York particularly, within the trading world. Then, too, there is a substantially greater risk in the case of private employment as compared with public employment that certain burdens may discourage, beyond effective detection, the employment of the members of the benefited class. This does not mean that the choice to provide coverage, onerous though it may be to private employment, should not be made, as was done with child labor and, within legislated limits, discrimination for age, sex, race, creed, or national origin. The point is that the choice is a legislative one to be made deliberately and should not be the product of judicial extrapolation based on social and economic preferences, whether in the majority or minority of this court.

The Legislature made that choice by providing that the Disability Benefits Law should apply only to private employment, and then only to certain private employments. Hence, the Human Rights Law is not the only statute involved in the cases now before the court. On the contrary, these cases must be resolved by reference to explicit provisions in the Disability Benefits Law (Workmen’s Compensation Law, § 205):

"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”.

This provision, not involved in any of the previous pregnancy-related cases, should be dispositive of the issue now presented. It reflects the legislative choice, whether that choice was right or wrong on social-economic grounds.

In 1949 the State adopted an innovative and forward-looking program to provide disability benefits for disabled workmen not entitled to workmen’s compensation (Workmen’s Compensation Law, art 9). The counterpart to workmen’s compensation in the proper sense of the word, it was to cover illness or disease and the consequences of accidents not arising in or out of the course of private employment. It was not to take care of "disabilities” due to other conditions which prevented one from engaging in compensated employment. It did not cover public employment. (See, generally, Governor’s memorandum on approval of Workmen’s Compensation Law, art 9, NY Legis Ann, 1949, pp 263-264.) Thus pregnancy was deliberately and explicitly excepted from coverage, and that has been the law since 1949 (see 1949 Report of Joint Legislative Committee on Industrial and Labor Conditions, NY Legis Doc, 1949, No. 67, p 44). Even since 1965, when the Human Rights Law was amended to prohibit sex discrimination, repeated efforts in the Legislature to eliminate the pregnancy exclusion of section 296 have failed, undoubtedly because the change would not conform with the Legislature’s view of the pattern and philosophy of the Disability Benefits Law (see 1965 Assembly Intro No. 856; 1971 Assembly Intro No. 4000; 1972 Assembly Intro Nos. 4000, 11269; 1972 Senate Intro No. 9370; 1973 Assembly Intro Nos. 1286, 4871, 5286; 1973 Senate Intro No. 2041; 1974 Assembly Intro Nos. 1286, 5286; 1974 Senate Intro No. 2041). The bills and the efforts to amend were controversial, debated by legislative supporters and opponents to the liberalizing measures. These were not bills merely filed and printed to mollify noisy proponents (compare New York Civil Liberties Union, Legislative Memorandum No. 8, Jan. 28, 1972, with Commerce & Industry Association of New York, Inc., Newsletter 72:8, Feb. 24, 1972). The bills were never passed, or even brought out of committee, despite publicity and strenuous efforts.

It is of interest, and relevant analytically, that while the Disability Benefits Law was first being considered, and later as amendments were being proposed, it was noted in legislative studies that there were some States in which there were statutes providing for pregnancy disability benefits (see 1948 Report of Joint Legislative Committee on Industrial and Labor Conditions, NY Legis Doc, 1948, No. 53, pp 35, 69-71; NJ Stat Ann, §§ 43:21-29, 43:21-39, subd [e]; RI Gen Laws, § 28-41-8). There were even a few States that required that pregnant employees for periods before and after delivery not be employed (Summary of State Labor Laws for Women, United States Department of Labor, March, 1969). In this State unemployment insurance benefits were denied to pregnant women unless they could show that they were still available for employment (Matter of Steiner [Catherwood], 31 AD2d 669, affd 25 NY2d 819).

These differences in treatment show that there are many choices to be made in providing for pecuniary benefits for pregnant working women. These are legislative choices, influenced by all sorts of economic and social factors, not excluding that which determines whether fellow employees, employers, the consumers of particular goods and services, or the general taxpayers should bear the financial burden of whatever costs such benefits entail. Influencing the choice of factors, of course, is the competitive consequence on industries in a State which adopts one policy or another. It is not the function of the court to decide which legislative choices were wise or unwise, or right or wrong, by moral, economic, or social standards.

The majority’s attempt to circumvent the clear expression of the legislative will by appealing, implicitly if not expressly, to the "higher law” values of the Human Rights Law is analytically unsound. The approach engenders a dangerous trend toward judicial arrogation of the legislative function.

It matters not how the majority characterizes its approach. The fact is that the only way to reach its conclusion, other than by adopting the properly rejected implied repeal argument, is by engaging in a ranking of statutes. For the virtual nullity the majority makes of the pregnancy exclusion can be explained only by subordinating the specific provisions of the Disability Benefits Law to the general policies of the Human Rights Law.

By finding a basis for ranking statutes as higher or lower, the majority engages in a jurisprudentially and intellectually dangerous excursion. I had always supposed, and still believe, that it is the exclusive function of the Legislature, within constitutional limits, to rank statutes, establish priorities, repeal or modify (impliedly or expressly), and determine what is and should be the legislative policy of the State. Indeed, I had always supposed, and still believe, that, putting aside controversial concepts of "natural law” and, in the Anglo-American jurisprudence, the unique tradition of the common law, there were only three ranks of law, Constitutions, statutes, and local law or regulations authorized by statute or Constitution. I cannot accept judicial subranking within these categories, substituting, as it does, the subjective or transitory views of a particular majority of a court for the mandates of those entrusted with legislating State policy. The danger posed by the majority’s analysis is not to the purity of terminology, classification, or concept, but to the integrity of a judicial process which does not recognize its limits.

In section 205 of the Disability Benefits Law, the Legislature has spoken with clarity and precision. It has been informed repeatedly of the purportedly discriminatory effect of the pregnancy exclusion, yet it has ¿ever acted to change the provision. Under these circumstances, the result rendered by the majority is nothing less than a direct and unwarranted overruling of legislative directions. If there is no repeal, there must be implication, and if there is neither the "law-making” function of a court is abused.

Accordingly, I dissent.

Judges Gabrielli, Wachtler, Fuchsberg and Cooke concur with Judge Jones; Chief Judge Breitel dissents and votes to affirm in a separate opinion in which Judge Jasen concurs.

In Brooklyn Union Gas Co. v New York State Human Rights Appeal Bd: Order reversed, with costs, the order of the Human Rights Appeal Board confirmed and cross motion for enforcement granted.

In American Airlines v State Human Rights Appeal Bd.: Order reversed, with costs, and the order of the Human Rights Appeal Board confirmed.

In State Div. of Human Rights v Crouse-Irving Mem. Hosp.: Order affirmed, with costs. 
      
      . We are aware, of course, that the United States Supreme Court has recently reached a contrary result in construing title VII (§ 703, subd [a], par [1]) of the Federal Civil Rights Act of 1964 (US Code, tit 42, § 2000e-2, subd [a], par [1]; General Elec. Co. v Gilbert, 429 US 125). The pertinent provisions of that statute are substantially identical to those of section 296 of the Executive Law of the State of New York. The determination of the Supreme Court, while instructive, is not binding on our court as we now confront the contention of private employers that the provisions of our State’s Disability Benefits Law excuse their failure to conform to the standard that we have held our Human Rights Law demands of public employers.
     
      
      . The situation would have been otherwise had the existing statute (the DBL), instead of setting a floor, contained provisions barring employers from treating pregnancy-related disabilities the same as nonj>regnancy-related disabilities. Then, indeed, the two statutes would have been repugnant. They could not have continued to exist side by side; one would have had to give way to the other.
     
      
      . We were informed on the application for leave to appeal in Crouse-Irving that the complainant’s right to sick leave benefits was no longer at issue and that she had been paid such benefits.
     