NAACP v. Hampton County Election Commission Jurisdictional Statement

    To Be Argued by- 
Marilyn J. Holifie Id 
30 Minutes Requested

COURT OF APPEALS OF THE STATE OF NEW YORK

MARSHALL K. JACKSON, :
AppelIant-Respondent,

-  against - :
THE LONG ISLAND RAILROAD COMPANY :
and STEWART MeCLOUD, :

Appellees-petitioners. :
----------  ~-x

BRIEF FOR THE 
MARSHALL M.

APPELLANT
JACKSON

and
ADDI­TIONAL PAPERS TO 

COURT OF APPEALS
mJ.HE

JACK GREENBERG 
MARILYN J. HOLIFIELD 

10 Columbus Circle 
Suite 2030
New York, New York 100 
(212) 580-8397

Attorneys for Appellant



table of c o n t e n t s

STATEMENT PURSUANT TO CPLR 5531........................  1
STATEMENT OF QUESTIONS INVOLVED AND ANSWERS 
OF THE COURT BELOW ..................................  5

STATEMENT OF THE C A S E ..................................  6

STATEMENT OF F A C T S ...................................  8

ARGUMENT

Page No.

I. The Appellate Division Ignored and Failed 
To Apply The Correct Standard of Review 
And Therefore Erred In Reaching Its Con­
clusion That The Record Does Not Support 
the state Human Rights Division And Appeal 
Board's Finding of Racial Discrimination . . .

A. Section 298 Limits Judicial Review To 
Whether There Was A Rational Basis Or
Abuse of Discretion ........................

B. Without Supporting Reasons The Appellate
Division Failed To Apply The Correct 
Standard of Review ..........................

C. The Record Of This Case Establishes A 
Rational Basis For The Decision Of the 
Division And Appeal Board And Shows
That It is Free of Abuse Of Discretion . . .
1. LIRR’s Use Of Separate And Unequal

Procedures Discriminated Against 
Marshall Jackson ......................

2. LIRR‘s Vision Requirements Are
Arbitrary And Unsupported by Business 
Necessity ............................

II. The Division's Order Requiring LIRR To 
Hire Appellant Jackson And To Grant Him 
Seniority And Other Compensation Was 
Proper And Does Not Conflict With The 
Railway Labor Act ........................

15

15

20

22

22

23

26

i



Page No.

A. Seniority Rights Under A Collective
Bargaining Agreement Are Not Inviolate ........  26

B. The New York State Human Rights Law Has 
The Same Force And Effect As Title VII
Of The Civil Rights Act of 1964 ..............  31

III. This Court Should Award Reasonable Attorneys'
Fees To Appellant Jackson . . ................. 33
(a) The Human Rights Law Should Be Read 

in Conjunction with Title VII of the
Civil Rights A c t ........................  33

(b) Awards of Attorneys' Fees to Prevailing 
Plaintiffs Are Favored in the Interests 
of "Fair Justice" And Where plaintiffs
Act to Effectuate Public Policies ........  34

(c) The Failure to Award Attorneys' Fees 
Will Severely Limit The Effectiveness 
of The Policies Sought to be Carried
Out Under the Human Rights Law............  36

(d) In Awarding Attorneys' Fees The 
Court Should Consider The Benefits 
Resulting From Counsel's Representation
Before the Division and Appeal Board . . .  39

Conclusion..........................................  40

APPENDIX
Additional Papers To The Court of Appeals 

ORDER OF THE COURT BELOW

Certificate of Service

- ii -



TABLE OF AUTHORITIES

Cases

Page No.
Angoff v. Goldfine, 270 F.2d 185 (1st Cir. 1959) . . . . . 40
Alexander v. Gardner-Denver Co., U.S.

39 L.Ed.2 147 (1974) .............................. . . 18
Barnes v. Goldberg, 283 N.Y.S.2d 347 (Sup. Ct.,

Duchess Co. 19G6) ................................ . . 18
Board of Education of Union Free School District v. 
N.Y.S. Div. of Human Rights, 345 N.Y.S.2d 93 
(App. Div. 2nd Dept. 1973) ........................ . . 30

Bell v. School Board, 321 F.2d 500 (4th Cir. 1963) . . . . 36
Bowe v. Colgate Palmolive Co., 416 F.2d 711

(7th Cir.’1969) .................................. . . 29
City of Albany v. Helsby, 328 N.Y.S.2d 658 (N.Y.

Ct. of Appeals, 1972) ............................ . . 30
Clark v. American Marine Corp., 320 F. Supp. 709 

(E.D. La. 1970), aff'd 437 F.2d 959 (5th Cir.
1971) ............................................

Consolo v. Federal Maritime Com'n, 383 U.S.
607 (1966) ...................................... . . 19

Cooper v. Allen, 467 F.2d 836 (5th Cir. 1972) . . . . . . 34, 36
Cooper v. Philip Morris, Inc., 464 F.2d 9 (6 th Cir. 

1972) ............................................ 18, 38
Delaney v. Conway, 241 N.Y.S.2d 384 (Sup. Ct.

1st Dept. 1963) .................................. . . 18
Dyer v. Love, 307 F. Supp. 974 (N.D. Miss. 1969) . . . . . 36
Ford Motor Company v. Huffman, 345 U.S. 330 (1953) . . . . 27
Ford v. white (s.D. Miss. Cir. No. 1230 (N) opinion 

dated Aug. 4, 1972) .......................... .. . . . 36
Gates v. Georgia-Pacific Corp., 326 F. Supp. 397 

(D. Ore. 1970) aff'd 492 F.2d 292 (9th Cir. 1974) . . 19

- iii -



Griggs v. Duke Power Co., 401 U.S. 424 (1971)..........  24-25
Hall v. Cole, 4.12 U.S. 1 ( 1 9 7 3 ) .......................  35
Holland v. Edwards, 307 N.Y. 38 (Ct. of Appeals, 1954). . 16,19,30
Internal Improvement Fund v. Greenbough, 105 U.S. 527

(1882) / ............................................  35
Jinks v. Mays, 350 F. Supp. 1037 (N.D. Ga. 1972) . . . .  36
Kaval Construction Corp. v. State Division of

Human Rights, 334 N.Y.S.2d 341 (App. Div. Second
Dept. 1972) ........................................ 17

Knight v. Auciello, 453 F.2d 852 (1st Cir. 1972) . . . .  36
La Raza Unida v. Volpe, 57 F.R.D. 94 (N.D. Cal. 1972) . 36-37
Lawrence Gardens, Inc. v. State Com1n for Human

Rights, 53 Misc.2d 20, N.Y.2d 548 (1963)............  30
Lee v. Southern Home Sites Corp. 444 F.2d 143

(1971; 429 F.2d 290 (5th Cir. 1970) ................  33, 35
Local 53, Asbestos Workers v. Vogler, 407 F.2d 1047

(5th Cir, 1969) ....................................  28
Local 53, etc. v. Vogler, 407 F.2d 1047 (5th Cir.

1968) ..............................................  24, 25
Local 189, United Papermakers and Paperworkers

v. United States, 416 F.2d 980 (5th Cir. 1968) . . . .  24-25
Lyle v. Teresi, 327 F. Supp. 683 (D. Minn. 1971) . . . .  36
Matter of Avon Bar and Grill Inc. v. O'Connel, 301

N.Y. 150 (N.Y. Ct. of Appeals, 1950)   17
Mills v. Electric Auto-Lite Co., 396 U.S.

375 (1970) ........................................  35
Mize v. State Division of Human Rights, 349 N.Y.S.2d

364 6 EPD 5(8925 (Oct. 18, 1973)....................  19, 30
NAACP v. Allen, 340 F. Supp. (M.D. Ala. 1972)........  36

Cases

Page No.

IV



Cases

Page No.
Nescott of East Islip, Inc. v. State Div. of 

Human Rights, 35 App. Div. 2d 573 (2nd Dept.) 
aff'd 27 N.Y.S.2d 787 (1970)........ . . 21

New York State Division of Human Rights v. New 
York-Pennsylvania Professional Baseball League, 
320 N.Y.S.2d 788 (1971) .......... . 24

Norman v. Missouri Pacific Railroad, 414 F.2d 73 
(8 th Cir. 1 9 6 9 ) ........ .. . . . 27, 32

Pettway v. American Cast Iron Pipe Company, 494 
F.2d 211 (5th Cir. 1974) .......... 29

Playboy Club of New York, Inc. v. State Liquor 
Authority, 29 App. Div. 2nd 916 (1st Dept. ]968) 
rev'd 23 N.Y.2d 544 (1969) . . .

Porcelli v. Titus, 431 F.2d 1254 (3rd Cir. 1970) . . 28
Quarles v. Philip Morris Co., 279 F. Supp. 505, 520 

(E.D. Va. 1968) .................. 27
Robinson v. Lorillard Corp., 444 F.2d 791 (4th 
Cir. 1971) .................. 25, 30

Rolax v. Atlantic Coast Line R. Co., 186 F.2d 473 
(4th Cir. 1951) ................ 35

Rolfe v. County Board of Education, 391 F.2d 
77 (6 th Cir. 1968) ................ 36

Rosen v. Public Service Electric and Gas Company, 
409 F.2d 775 (3rd Cir. 1969) ........ 27

Ross v. Goshi, 351 F. Supp. 949 (D. Hawaii, 1972) . . 36
Rose v. General Motors, 457 F.2d 348 (5th Cir. 

1972) .................... 25 '
Sanders v. Russell, 401 F.2d 241 (5th Cir. 1970) 37
Sims v. Amos, 340 F. Supp. 691 (M.D. Ala. 1972) . , 36
Sprague v. Ticonic National Bank, 307 U.S. 164 

(1939) .......................... 35

v



Cases

State Commission for Human Rights v. Suburban 
Assocs., 286 N.Y.S.2d 733, 738 (Supreme ct.,
Nassau Co., 1967) ....................................  17-18

State Div. of Human Rights v. Kennelly, 291 N.Y.S.2d
6 8 6, aff'd 296 N.Y.S.2d 367 (1968) ..................... 18

Stork Restaurant, Inc. v. Boland, 282 N.Y.
256 (1940) .............................. ............ 16, 19

U. S. v. Bethlehem Steel Corp. , 5 EPD «[[7988, aff'g 312 
F. Supp. 977 as modified in 446 F.2d 652 (W.D. N.Y„
1972)   27-28

United States v. Bethlehem Steel, 446 F.2d 652
(2nd Cir. 1971.) ................................ .. 25

U.S. v. Jacksonville Terminal, 451 F.2d 418 (5th Cir.
1971), cert, denied 406 U.S. 906 ( 1 9 7 2 ) ............  28, 32

Voutsis v. Union Carbide Corp., 452 F.2d 839
(2nd Cir. 1971) ....................................  38

Wyatt v. Stickney, 344 F. Supp. 387 (M.D. Ala. 1972) . . 36

Other Authorities

Executive Law, Sections 295, 297-298 ........ .. 4-6, 17,
20, 24

CPLR § 5601 (a) ( i i ) ..................................  6

Civil Rights Act of 1964 ............................  1 7 , 3i_
32, 34

42 U.S.C. § 1 9 8 1 .......................... .. 34
45 U.S.C. § 151 ....................................  26
U.S.C. § 3612 (c) ....................................  33

Page No.

vi



Statement Pursuant to CPLR 5531

1. The index number of the proceeding below before the New 
York State Division of Human Rights was C-21332-70.

The index number of the proceeding before the New York 
State Human Rights Appeal Board was Appeal No. 1256.

There was no index number of the proceeding before the 
New York Supreme Court, Appellate Division, Second Department.
2. The full name of the original complainant before the New 
York State Division of Human Rights is Marshall Mitchell 

Jackson.
The Long Island Railroad Company and Stewart McCloud,

Road Foreman of Engines and Assistant Superintendent of Engine 
Service of the Long Island Railroad were the named respondents 
in the original complaint to the New York State Division of 
Human Rights.

The New York State Division of Human Rights (sometimes 
hereafter "Division") issued the order reviewed by the New 
York State Human Rights Appeal Board (hereafter "Appeal Board") 
and appeared before the Appeal.Board by counsel.

The Division is not a party to this appeal.
3. This action was commenced by Marshall Jackson by the 
filing of a verified complaint with the New York State 
Division of Human Rights, 270 Broadway, New York, New York

1



charging racial discrimination in employment.
4. The complaint to this action was filed July 1, 1970. 
Following an investigation, the Division found it had juris­
diction over the complaint and that probable cause existed 
to believe that the Long Island Railroad (hereafter LIRR) 
and Stewart McCloud had engaged in an unlawful discriminatory 
practice. The parties appeared by counsel and participated in 
public hearings held on October 28, 1970, April 14, June 8 

and August 24, 1971 before a hearing examiner at which hearings 
testimonial and documentary evidence was heard and received. 
Briefs were filed in behalf of all parties on September 30, 
1971. A reply brief was filed by LIRR and. Stewart McCloud, 
appellees here, on October 28, 1971.

The Division, on February 8 , 1972, issued its decision 
finding that the Long Island Railroad and Stewart McCloud 
(hereafter "LIRR") had unlawfully discriminated against 
Marshall Jackson. The Division thereupon ordered appellees 
to hire Mr. Jackson and grant him seniority and other rights 
which would have accrued to him but for the discriminatory 
rejection of his June 24, 1970 application for employment.
This Decision and Order was served on February 15, 1972.

On February 22, 1972 the Long Island Railroad filed a 
Notice of Appeal to the New York State Human Rights Appeal 
Board from the February 8 , 1972 Order of the Division.
Following the oral argument on October 26, 1972, the Appeal

2



Board issued its decision on June 11, 1973, affirming the 
February 8, 1972 Order of the Division.

Thereafter on July 5, 1973, the Long Island Railroad 
and Stewart McCloud petitioned the Appellate Division,
Second Department for an order setting aside and annulling 
the February 8 , 1972 order of the New York State Division of 
Human Rights and the June 11, 1973 decision and order of the 
New York State Human Rights Appeal Board. On August 15, 1973, 
Marshall Jackson filed, a Memorandum In Opposition to Petition 
To Set Aside And Annul Orders and Decision of the Division 
and Appeal Board, a Motion to Enforce the Order of the 
Division, and a Motion For An Order Awarding Reasonable 
Attorneys' Fees. The Appellate Division, on October 1, 1973, 
granted LIRR* s petition seeking review and denied each of 
Jackson’s motions.

Appellees, petitioners below, filed a brief in support 
of their petition on September 5, 1973. Thereafter Appellant, 
respondent below, submitted its brief. Oral argument was 
heard on November 21, 1973, and the Appellate Division on 
February 4, 1974, entered its decision finding no sub­
stantial evidence to support any inference of racial dis­
crimination, annulled the decisions and orders of the 
Division and Appeal Board and dismissed the complaint of 
Marshall Jackson. The decision of the Appellate Division

3



was served on March 1, 1974. The Notice of Appeal to the 
Court of Appeals was timely filed on March 4, 1974, by Appel­
lant Marshall Jackson.

5. Appellant seeks an order from this Court reversing the 
Appellate Division's finding of no substantial evidence to 
support any inference of racial discrimination, its order 
annulling the decision and orders of the Division and Appeal 
Board and dismissing Marshall Jackson's complaint, and
its denial of Appellant's motions for enforcement of the 
State Division's orders and for award of reasonable attorneys' 
fees.

6 . This appeal is from a final order of the Appellate 
Division, Second Department, entered on February 4, 1974, 
reversing the Decision and Orders of the New York State 
Human Rights Division and Appeal Board, respectively.
7. This is a proceeding under the Executive Law (Human 
Rights Law), Section 298, therefore this matter is being 
heard on the original record, and the appendix method is 
not being used.

4



COURT OF APPEALS OF THE STATE OF NEW YORK
----------------------------------------------------- -

MARSHALL M. JACKSON, :
Appellant-Respondent, :

- against - :
THE LONG ISLAND RAILROAD COMPANY :
and STEWART McCLOUD, :

Appellees-Petitioners. :
_____________________________________________________ _

BRIEF FOR THE APPELLANT 
MARSHALL M. JACKSON

STATEMENT OF QUESTIONS INVOLVED AND ANSWERS 
OF THE COURT BELOW____________

Whether the decision and orders of the New York State 
Human Rights Division, affirmed by the Appeal Board, find­
ing that LIRR had discriminatorily denied a black applicant 
employment, were founded upon sufficient evidence consistent 
with Section 298 of the Executive Law, whether the remedial 
provisions awarding employment with seniority and other 
compensation to the discriminatee were within the purview 
of Section 297 of the Executive Lav/, and whether Appellant

5



should be awarded a reasonable attorneys' fee? The 
Court below ruled that there was no sufficient evidence 
to support any inference of discrimination, annulled the 
decision and orders of the Division and Appeal Board, dis­
missed the complaint of Appellant Marshall Jackson and 
denied an award of attorneys' fees.

STATEMENT OF THE CASE

This case involving racial discrimination in employment 
comes here on appeal from a final order of the New York 
State Supreme Court, Appellate Division, Second Judicial 
Department, entered February 4, 1974, reversing the 
decisions and orders of the State Division of Human Rights 
and the Appeal Board. This appeal presents important 
issues concerning the proper standard of judicial review 
of factual determinations and remedial orders —/ of the 
State Human Rights Division and Appeal Board. This appeal 
also presents the issue of reasonable attorneys' fees to 
private counsel in an action brought by a rejected black 
applicant alleging racial discrimination by the employer 
under the Human Rights (Article 15) provisions of the 
Executive Law. This Court has jurisdiction under CPLR 
§5601 (a) (ii).

^  Executive Law § 298.
Executive Law § 297.

6



This action grew out of a complaint filed with the 
Division on July 1, 1970, by Marshall Jackson charging 
that the Long Island Railroad had rejected his application 
for a position as a fireman because of his race and color. 
Following an investigation of the complaint and public 
hearings held on October 28, 1970, April 14, June 8, and. 
August 24, 1974 before a hearing examiner, the Division 
found that LIRR had engaged in a discriminatory employment 
practice and ordered the railroad to offer Mr. Jackson 
employment as a fireman and grant him seniority and com­
pensation which he would have been entitled to had he 
been employed. This decision and order was entered on 
February 8 , 1972. After oral argument the Appeal Board 
affirmed the February 8 , 1972 order of the Division.

The Long Island Railroad sought judicial review of 
the Appeal Board's Decision and Order. Thereafter the 
Appellate Division, Second Department, on October 1, 1973, 
denied appellant's August 15, 1973 memorandum in opposition 
to LIRR's petition to set aside and annul orders and 
decisions of the Division and Appeal Board, appellant's 
motion to enforce the order of the Division and his motion 
for reasonable attorneys' fees. Following the submission 
of briefs and oral argument, the Appellate Division found 
no substantial evidence to support any inference of 
discrimination and unanimously annulled the decisions and

7



orders of the Division and Appeal Board and dismissed the 
complaint of Marshall Jackson. This decision was served 
on March 1, 1974.

Jackson filed a timely Notice of Appeal to the New 
York State Court of Appeals and thereafter a statement 
with the clerk of this Court in accordance with § 500.2 
of the Rules of Appellate Practice. On this appeal 
Appellant seeks an order reversing the Appellate Division's 
finding of no substantial evidence, its annulment of the 
remedial orders, and its dismissal of the complaint to 
this action. Appellant also seeks an order awarding- 
reasonable attorneys' fees.

STATEMENT OF FACTS

In April, 1970, Marshall M. Jackson, a black man,
filed an application for employment with the Long Island 

3/Railroad (180) . The record reveals that on O'une 24, 1970, 
Mr. Jackson was directed to take a physical examination 
administered by personnel of LIRR (40). The initial phase 
of the examination consisted of a test for visual acuity 
and color blindness. The physician for the railroad, Dr.

3/ The numbers in parenthesis refer to pages in the record.

8



Mark Fox, Medical Director of LIRR, testified that 20/20 
vision in each eye, uncorrected, was required to qualify 
physically for the job of fireman (105, 110). Upon taking 
the physical examination Mr. Jackson was informed im­
mediately that he did not pass the eye test requiring 
2 0 / 2 0 vision in each eye uncorrected, therefore his 
application for employment as a fireman could not be 
considered further even though he met all other physical 
and mental requirements (105, 110).

The events in connection with four whites who sought 
employment with the LIRR as firemen and who were eventually 
hired as firemen stand in marked contrast to Mr. Jackson's 
experience.

A white applicant, Mr. Pinghero was examined on 
April 15, 1970, by the late Dr. Gorman McVeigh, the same 
physician who determined Mr. Jackson unfit (547). Dr. 
McVeigh approved Pinghero's distance vision of right eye 
29, left eye 2 2, as qualifying him for employment even 
though such vision fails to meet the written requirements 
of LIRR (547, 549). Thereafter Mr. Pinghero was employed 
as a fireman by LIRR (549).

In the case of Mr. Larson, also white, Dr. Cappozzi,
Dr. Fox's predecessor, administered the physical examination 
on January 22, 1970 (543). Having a Distant Vision right 
eye 29, left eye 22, Larson's vision failed to meet LIRR's

9



requirement of 20/20 vision uncorrected in each eye (543). 
Rather than immediately disqualifying Mr. Larson's appli­
cation for employment, as in the case of Mr. Jackson, 
the Company chose to re-examine this white prospective 
employee four days later, and on January 26, 1970, 
although his performance barely improved in the retesting, 
Larson was approved and subsequently hired as a fireman

(545-546).
Yet another white applicant for the position of fire­

man, William C. Miller, was examined by Dr. McVeigh on 
April 15, 1970, and. his uncorrected distance vision was 
right eye 33, left eye 29, both less than LIRR's written 
requirements (524). These initial readings, as in the 
case of the above mentioned applicants, were obtained by 
testing on the Bausch-Lomb Ortho-Rater as required by

the Company's regulations (527).
Dr. Fox testified that the Bausch-Lomb Ortho-Rater, a 

highly sophisticated instrument, has consistent lighting 
and gives more consistent results than the Snellen Chart, 
the commonly used lettered chart for testing distance 
vision (572). He further testified that the charts used 
in the Bausch-Lomb Ortho-Rater are not readily available and 
are less likely to be memorized by one taking the test

(582) 4/

4/ The price of the Snellen 
Bausch-Lomb testing machine 
dollars, is as low as $1.25

Chart, unlike the price of the 
which ranges in the hundreds of 
to twenty-five dollars (584).

10



Dr. Fox also testified that he received a report 
from a private physician, Dr. Anna Creighton Laing, stating 
that Mr. Miller's vision was 20/20 in each eye (526).
Mr. Miller'was re-examined by the railroad on June 18,
1970, this time using the Snellen chart (528). Mr. Miller 
was approved for employment the following day (527).

It is significant that for purposes of re-examination 
of each of the white applicants the railroad, contrary to 
its written regulations, used only the Snellen chart, a 
chart which Dr. Fox stated is readily available and could 
easily have been memorized (582). The fact that Mr. Miller 
was examined by an outside physician on the same date 
(April 15, 1970) that he was disapproved by the Railroad 
is of course consistent with the fact that he was informed 
that the findings of the railroad doctor were not final 
and that he could consult a private physician, a right 
which was not extended to appellant Jachson until after- 
he submitted a complaint to the State Division of Human 

Rights (433-435).
Equally significant is the fact that each of the 

white applicants was a relative or friend of a current 
employee of the railroad or of a member of the fireman's 
union and therefore had close access to information pertain 
ing to unwritten courtesies (i.e. opportunity to be re­
tested by private physician or use of Snellen chart upon 
re-examination by the company) which deviated from official

11



policies and regulations.
Still a fourth white applicant, Richard Houston, 

was examined by Dr. Fox on April 15, 1970, using the 
Bausch-Lomb Ortho-Rater testing machine (Complainant's 
Exhibit 5-B). He received a distant vision rating of 
right eye 40, left eye 20 (534).

As with Mr. Miller, Mr. Houston was retested using 
only the Snellen chart and on June 18, 1970, was certified 
by the railroad physician as having vision of 20/20 
(538-539). Houston was thereupon approved for employment 
(537, 540).

Dr. Fox testified that Jackson was examined by Dr.
McVeigh, and Dr. McVeigh disapproved of Jackson's physical

5 /qualifications (497, 4 9 8 ) Dr. Fox further testified 
that he reviewed the examination record and sustained Dr. 
McVeigh's finding (498). Dr. Fox made a notation that 
Jackson stated at a previous examination that he was born 
with a deficiency in his right eye and this, Fox testified, 
was the basis for the disqualification (498). Contradicting 
this assertion, Mr. Jackson on cross-examination denied 
having any conversation with Dr. Capozzi, Dr. Fox's predeces­
sor, concerning a childhood eye defect (120). Admittedly 
complainant wore glasses as a child but denies having, or

5/ Dr. Fox testified that the physician who examined Mr. 
Jackson reported to him.

12



representing himself as having been born with,. an eye 
defect. Complainant testified only that he told Dr. 
Capozzi. that at one time, as a child, he had what he 
termed "a lazy eye" (124).

The record also shows, without dispute, that Mr. 
Jackson was not informed that he could be retested im­
mediately after he failed the examination administered 
by Dr. McVeigh (213). Only after a complaint charging 
racial discrimination had been filed was the question 
ever broached, according to the testimony of Robert E. 
Peterson, who is in charge of LIRR's Personnel Relations 
Department, and Jackson himself (213-214, 433-435).

It should be noted that the job of fireman at LIRR 
has been traditionally reserved for whites. In fact,
LIRR was cited for engaging in discriminatory employment 
practices in 1958, at which time only 5 of the 466 fire­
men were black (383). In 1969 the railroad hired 3 
blacks as firemen, and in 1970, the year Jackson was 
refused employment, LIRR hired 5 blacks as firemen (223, 
281). Clearly this token hiring of blacks does not sig­
nificantly erode the persistent exclusion of blacks from 
the fireman's position. Indeed, Appellant submits, it 
further reflects the discriminatory impact of LIRR's dual 
procedures which operate to insure that the position of

13



fireman remains overwhelmingly white.
The facts contained in the record clearly show that 

the four white applicants hired by LIRR at the time 
Jackson's employment application was rejected did not 
meet the standards of visual acuity as set forth in 
LIRR's written medical standards. Hence the standards 
are relaxed or waived for whites but rigidly applied to 
Jackson, a black applicant. This striking discrepancy 
in the procedures followed as between the four whites 
and the black complainant firmly establishes the basis 
for the inference of racial discrimination on the part of 
LIRR in its refusal to hire Marshall Jackson as a fireman.

Furthermore, as the Division and the Appeal Board 
found, the record failed to establish the necessity for 
LIRR's 20/20 vision pre-employment requirement for the 
position of fireman. Robert E. Peterson, who is in charge 
of LIRR's Personnel Relations Department, testified that 
he could not explain the existence of the 2 0 / 2 0 vision 
requirement for pre-employment purposes other than to 
assert that it was believed necessary because "it is 
the area of greatest responsibility for the safety of 
the public" (474). He admitted, however, that no job 
analyses had been conducted to determine what sort of 
vision was requisite to insure the public safety while 

performing as a fireman (474).

14



The record also establishes that LIRR is aware, 
through retesting, that many incumbent firemen have 
deteriorating vision, less visual acuity than Jackson, 
and wear glasses (475). Nevertheless, such employees 
are permitted to continue working' *:s firemen since, as 
testified by Robert Peterson, there is no policy of removing 
employees whose eyesight deteriorates below the 2 0 / 2 0  

scale (475).

ARGUMENT

I* The Appellate Division Ignored and Failed To 
Apply The Correct Standard of Review and 
Therefore Erred In Reaching Its Conclusion 
That The Record Does Not Support the state 
Human Rights Division And Appeal Board's 
Finding of Racial Discrimination.

A. Section 298 Limits Judicial Review To Whether
There was A Rational Basis Or Abuse of Discretion.

The Appellate Division's decision of February 4, 1974, 
which annulled the orders of the Human Rights Division and 
Appeal Board and dismissed appellant Jackson's complaint 
provides:

"In our opinion the record contains no 
substantial evidence to support any 
inference (emphasis supplied) that 
petitioners unlawfully discriminated 
against the complainant by denying him 
an available position because or race 
and color."

15



basis whatsoever for concluding under Section 298 of
the Human Rights Lav/ the record considered as a whole does
not support the Division's finding of racial discrimination.

6/Section 298," making conclusive Division findings, was
first interpreted in Ho11and v. Edwards, 307 N.Y. 38
(Court of Appeals, 1354). There this Court equated the
"sufficient evidence" requirement with the "substantial
evidence" test applied in reviewing other administrative
decisions. Edwards, supra 307 N.Y. at 44.

Edwards, supra, rested in turn upon Stork Restaurant,
Inc, v. Boland, 282 N.Y. 256 (1940). Boland set down the
standard of review of State Labor Relations Board rulings,
holding that resolution of conflicts in testimony and.
choice between inferences supported by evidence are for

7 /the administrative agency. 282 N.Y. at 287.—

The Appellate Division's decision articulates no

6/ Section 298 of the Human Rights Law provides in relevant 
part that, "The findings of facts on which such order is 
based shall be conclusive if supported by sufficient evidence 
on the record considered as a whole."

^  In Edwards this Court, adopting the Boland standard, de­clared:

16



It is clear that Edwards, supra at 45, follows the
8 /command of the Executive Law — which assigns to the 

Human Rights Division the responsibility to "weigh facts, 
to reach a conclusion as to motives and attitudes, based 
on fair inferences from the facts." Kaval Construction 
Corp. v. State Division of Human Rights, 334 N.Y.S.2d 341, 
343-344 (App. Div., Second Dept. 1972); Cf. Matter of 
Avon Bar and Grill Inc, v, O'Connel, 301 N.Y. 150, 153

9/(N.Y. Ct. of Appeals, 1950). Indeed federal standards

7/ (Cont'd.)
"Judicial review of findings by an administrative 
agency such as this Commission is limited to the 
question whether the findings are, upon the entire 
record,supported by evidence 1 so substantial that 
from it an inference of the existence of the fact 

: found may be drawn reasonably. 1 (emphasis sup­
plied) Stork Restaurant v. Boland, 282 N.Y. 256, 
273.

* * *

"One intent on violating the law against dis­
crimination cannot be expected to declare or 
announce his purpose. Far more likely is it 
that he will pursue his discriminatory prac­
tices in ways that are devious, by methods 
subtle and. elusive. . . All of which amply
justifies the legislature's grant of broad 
power to the commission to appriase, correlate 
and evaluate facts uncovered." (emphasis sup­
plied) ‘ 307 N.Y." at 44-45.

Accord, State Commission for Human Rights v. Suburban Assocs.,
286 N.Y.S.2d 733, 738 (Supreme Court, Nassau Co.1967).
—/ Executive Law, §§ 295, 297.

—^ Title VII of the civil Rights Act of 1964, as amended,
42 U.S.C. § 2000e-5 (b).

17



permit courts to defer or assign weight, depending on 
the circumstances, to administrative determinations of 
state or local authorities. See Cooper v. Philip Morris, 
Inc., 464 F.2d 9, 12 (6 th Cir. 1972); cf. Alexander v.
Gardner-Denver Co., ___ U.S. ___, 39 L.Ed. 2 147, 165 n.21
(1974).

The proper standard of review, consistent with the 
basic rule announced in Edwards, supra, has been further 
interpreted by this and other courts of New York. In 
State Division of Human Rights v. Kennelly, 291 N.Y.S.2d 
6 8 6, aff1d 296 N.Y.S.2d 367 (1968) this Court, affirming 
the lower court's decision, endorsed the principle that 
the,". . . reviewing court will be concerned solely with 
whether the findings have a rational basis. stated
differently Edwards requires that the only question before 
the court reviewing agency findings is "whether others 
might reasonably make the same choice as the commission. " 
Barnes v, Goldberg, 283 N.Y.S.2d 347, 352 (Sup. Ct., 
Duchess Co. 1966). It follows that under Edwards an ad­
ministrative finding cannot be upset on the ground that

See Delaney v. Conway, 241 N.Y.S.2d 384, 388 (Supreme 
Court, First Dept. 1963), where the court stated, "Judicial 
function is exhausted when there is found to be a reasonable • 
basis for conclusions approved by the state commission."

See also State Commission for Human Rights v. Suburban 
Assocs., 286 N.Y.S.2d 733, 738 (Supreme Ct., Nassau Co., 1967),

18



there is substantial evidence to support a conclusion
. . .  11/contrary to that reached by an administrative agency. 

Consolo v. Federal Maritime Comrn'n, 383 U.S. 607 (1966);
Stork Restaurant Inc, v. Boland, supra, 282 N.Y. at 267; 
Holland v. Edwards, supra, 307 N.Y. at 44-45.

Recently this Court further explained Section 298 in 
Mize v. State Division of Human Rights* 349. N.Y.S.2d 364,
6 EPD ^8925 (Oct. 18, 1973) ^ a n d  limited the scope of 
review of the reviewing court to that of the Appeal Board.

10/ (Cont'd)
findings need not be based on evidence establishing them 
beyond reasonable doubt.
1 1 / „ *-See Gates v
399 (D. Ore. 
1974), under 
that other

Georgia-Pacific Corp., 326 F. Supp. 397, 
X9 7O) aff'd 492 F.2d 292, 295-296 (9th Cir. 
the Fourteenth Amendment it makes no difference 

facts in the record might support the discharge
of an employee on non-racial grounds.

11/ in Mize, supra, this Court ruled that an award or back 
pay, upon a finding of discrimination, should be upheld 
unless the record proved the decision to be so arbitrary 
or capricious as to constitute an abuse of discretion and 
thus be erroneous as a matter of law. -This Court furth 
concluded that findings of the Division should a ho b up 
held unless the record showed it was an abuse of disc 
clearly unwarranted by the facts.

19



is whether the decision of the commissioner was "arbitrary,
capricious or characterized by abuse of discretion or

13/clearly unwarranted." —

B. Without Supporting Reasons The Appellate 
Division Failed To Apply The Correct 
Standard of Review.

Here the Appellate Division without explanation nor 
discussion of the record overturned, the findings and 
annulled the orders of the Division and Appeal Board. More 
specifically, the opinion of the Appellate Division failed 
to state whether its decision was based upon conflicts in 
the evidence or even identify such conflicts. It did not 
indicate specific instances where there was insufficient 
or no evidence to support the agency's findings and con­
clusions. In sum, the opinion neglected to focus on any 
aspect of the record which persuaded it to reach its sum­
mary conclusion. These ommissions are significant since 
there is a substantial record of undisputed testimonial 
and documentary evidence substantiating the decision of 
the Division and Appeal Board.

Thus, the controlling standard for the Appellate Division

Executive Law, § 297-a., subd. 7, par. e.13/

20



It is particularly important in this case involving 
racial discrimination, with its implications of federally 
recognized rights, that the Human Rights Division and Appeal 
Board have some indication of the court's reasoning rather 
than summary disposition without opinion. Explicit 
reasoning, especially in a case having a strong evidentiary 
record, would make clear that precisely the same standards 
apply (and of course the correct standards) irrespective 
of the nature of the claims presented before the admini-

14/strative agency.
Indeed it appears as if the Appellate Division ar­

bitrarily rejected the findings, decision and orders of 
the Division and substituted its judgment in clear contra­
vention of statutory provisions and boundaries of review 
established by this Court. With its conclusory statement 
of no substantial evidence, the Appellate Division re­
fused to follow the firmly established legal principle 
that there need only be a rational basis to sustain the 
decision of the Division and Appeal Board and that the 
agency determination should remain intact unless such 
determination is an arbitrary and capricious abuse of dis­
cretion.

Compare Nescott of East Islip, Inc, v. State Div. of 
Human Rights, 35 App. Div. 2d 573 (2nd Dept.) aff1 d 27 N.Y.-S. 
2d 787 (1970) with Playboy Club of New York, Inc, v. State 
Liquor Authority, 29 App. Div. 2d 916 (1st Dept. 1968) rev' d 
23 N.Y.2d 544 (1969).

21



C. The Record Of This Case Establishes A Rational 
Basis For The Decision Of The Division And 
Appeal Board And Shows That It Is Free Of Abuse 
Of Discretion.

1. LIRR's Use Of Separate And Unequal Procedures 
Discriminated Against Marshall Jackson.

To be sure, in the instant case, the evidence 
convincingly establishes,and the Division and Appeal Board 
found,that LIRR followed two different sets of procedures for 
administering the vision test to applicants for fireman's 
jobs in the spring of 1970. One, applied consistently to 
four white applicants, gave every opportunity for success, 
even to the point of breaching the Company's own written 
regulations. This procedure included the following prac­
tices: immediately informing applicants who initially
failed the Bausch-Lomb test that they could request retesting 
or solicit an independent medical evaluation of their 
visual acuity; use of the Snellen chart test instead of the 
Bausch-Lomb test for re-examination purposes, despite the 
Company's awareness that the former could be obtained and 
memorized and was generally inferior as a measure of 
vision; and actual employment of persons (Larson and 
Pinghero) who did not, on all the evidence, have 20/20 
vision as accurately measured by the most reliable methods.
It is little wonder that four white applicants who initially' 
failed the Bausch-Lomb examination were later approved and 
hired: the procedures used did everything possible to

22



assure their eventual success. A second and. utterly
different procedure was invoked for appellant's testing.
No one informed appellant of his right to retesting; no
one circumvented regulations to allow appellant to be
measured by the Snellen chart test; .no one attempted to

15/evaluate fairly his alleged childhood eye problem. 
Everything was done to impose appellant's supposed lack of 
perfect vision as a bar to the coveted fireman's position.

Clearly, this record shows that appellant's vision was 
in all probability at least as acute as that of four 
whites who were hired. It shows without dispute that all 
four white firemen failed the reliable Bausch-Lomb test, 
which proved them lacking 2 0 / 2 0 vision. Indeed, the record 
proves that had Mr. Jackson been white he would have been 
afforded every possible opportunity to gain employment as 
a fireman rather than the immediate disqualification of 
his application.

2. LIRR's Vision Requirements Are Arbitary And 
Unsupported by Business Necessity.

The injustice inflicted upon Mr. Jackson by LIRR's 
adherence to these separate and unequal procedures is 
compounded by the fact that LIRR has never documented nor

15/ See Statement of Facts, supra at 8.

23



verified the necessity of its pre-employment requirement 
of uncorrected 20/20 vision nor any of its arbitrary cut­
off scores which are applied when the standard vision re­
quirement is relaxed. Indeed personnel of the railroad, 
admitted that their practices give rise to the contradiction 
of having currently employed firemen with vision inferior 
to that of Mr. Jackson, yet Mr. Jackson is excluded, from 
employmentDoubtless, on the basis of these facts 
perfect vision does not constitute a .bona fide job qualifica­
tion for firemen, in the Railroad’s own view and practice.

It is well established that a job requirement which 
operates to exclude members of a minority group from employ­
ment opportunities cannot be used, unless its use meets the

17 /test of "business necessity." —  Griggs v. Duke Power Co., 

401 U.S. 424 (1971); Local 189, United Papermakers and 
Paperworkers v. United States, 416 F.2d 980 (5th Cir. 1968); 
Local 53, etc, v. Vogler, 407 F.2d 1047 (5th Cir. 1968);

i6/ The record fails to show that company officials can pre­
dict the rate of deterioration of vision, and the railroad 
personnel are completely speculative when they assert that 
2 0 / 2 0 vision at the start of employment insures acceptable 
vision for a desirable period of employment. Hence is is 
not surprising that some present firemen have less visual 
acuity than Jackson and wear glasses. See Statement of 
Facts at p. 9.
— / Executive Law, § 296 subd. 2 (d). See New York State 
Division of Human Rights v. New York-Pennsylvania Profes- 
sional Baseball League, 320 N.Y.S.2d 788 (1971).

24



United States v. Bethlehem Steel, 446 F.2d 652 (2nd Cir.
1971) ^ Rowe v. General Motors, 457 F.2d 348, 355 (5th
Cir. 1972). Mere rationality or business convenience is 
not adequate to meet this stringent test. Local 53, etc, 
v. Voqler, supra; Robinson v. Lorillard Corp., 444 F.2d 
791 (4t.h Cir. 1971) . The Division correctly found that 
LIRR's use of the 20/20 requirement to exclude complainant 
from the fireman position cannot be seriously deemed to 
reflect a "business necessity" in light of the facts regard­
ing white firemen's less than 20/20 vision. Therefore, the 
Division, as affirmed by the Appeal Board, correctly held 
the application of the requirement to appellant to be an 
unlawful act of discrimination.

Certainly, the fact of LIRR's use of flexible pro­
cedures for whites and its rigid adherence to arbitrary 
regulations as to Mr. Jackson, black, strongly supports 
the inference of racial discrimination by LIRR in its re­
fusal to hire Jackson as a fireman. In short, the facts 
of this record provide a rational basis for the decision 
of the Division and Appeal Board and refute any contention 
that the decision was an arbitrary and capricious abuse of 
discretion, unwarranted by the circumstance.

— / The fact that such a requirement may be superficially 
neutral as to race, or may be used without deliberate intent 
to exclude blacks would not, of course, provide any defense 
to the presumption of discrimination. Griggs v. Duke power 
Co., supra; Local 189, etc, v. United States, supra.

25



II. The Division's Order Requiring LIRR To 
Hire Appellant Jackson And To Grant Him 
Seniority And Other Compensation Was 
Proper And Does Not Conflict With the 
•Railway Labor Act.

In the Court below appellees objected in particular 
to the Division's award of seniority to Appellant Jackson 
without consideration of the provisions of the Railway 
Labor Act, 45 U.S.C. §151, e_t seq. and the collective bar­
gaining agreements between LIRR and the Brotherhood of 
Locomotive Engineers. Appellees argued that the order 
violates the seniority and other rights of other firemen 
under the collective bargaining agreement; and that since 
the agreements were established, pursuant to the Railway 
Labor Act, the aforementioned orders of the Division and 
Appeal Board constitute an improper and unlawful inter­
ference with the federally protected collective bargaining 
agreement. In short, appellees argued that the state is 
powerless to remedy racial discrimination in employment 
whenever there is a collective bargaining agreement which 
contains a seniority clause. This argument is simply un­
tenable.

A. Seniority Rights Under A Collective Bargaining 
Agreement Are Not Inviolate.

It is important to note at the outset that the 
Division's Order does not require a modification of the 
collective bargaining agreement. It presupposes the

26



the validity of said agreements and merely seeks to 
confer on Jackson the rights he would have enjoyed under 
the agreement absent the company's discrimination. In 
other words, no term or provision of the collective bar­
gaining agreement is touched by the Division's Order. 
Appellant Jackson merely acquires a seniority ranking as 
of the date LIRR should have hired him.

It is well established that seniority rights "are not 
vested, indefeasible rights. They are expectancies derived 
from the collective bargaining agreement, and are subject 
to modification." Quarles v. Philip Morris Co., 279 F.
Supp. 505, 520 (E.D. Va. 1968). The Supreme Court has held 
that contract rights such as seniority may be modified by 
public policy or by change in law. Ford Motor Company v. 
Huffman, 345 U.S. 330 (1953). Accord: Honaan v. Missouri
Pacific Railroad, 414 F.2d 73, 85 (8th Cir. 1969); Rosen v. 
Public Service Electric and Gas Company, 409 F.2d 775 (3rd 

Cir. 1969).
In this case, of course, one of the parties to the col­

lective bargaining agreement, the union, has not been a 
party to the administrative proceeding or this litigation. 
But this fact is not a bar to the relief granted by re­
spondent Division. The New York District Court dealt with 
such a situation in U.S. v. Bethlehem Steel Corp., 5 EPD

27



§ 7988, affirming 312 F. Supp. 977, as modified in 446 F.2d 
652 (W.D. N.Y. 1972). There, the Court affirmed a previous 
order to permit certain black employees to use plant 
seniority rights to transfer into the plant Patrol Depart­
ment despite the fact that the plant guards were covered 
by a collective bargaining agreement negotiated by a bar­
gaining representative which was not a party to the action. 
The court simultaneously denied a motion to add the union 
as a party defendant. Thus, the New York District Court 
upheld, as part of the relief granted to black employees, 
the modification of seniority rights of the plant guards 
which were governed by a collective bargaining agreement 
which was not in issue in the litigation and whose bargain-
ing agent, a party to the collective bargaining agreement,

19/was not a party to the litigation.—
Even if full vindication of appellant Jackson's right 

to be free of discriminatory employment practices required 
the Division to modify terms of the labor contract, such

1_9/ A collective bargaining agreement can not immunize 
racially discriminatory practices from judicial relief. 
Porcelli y. Titus, 431 F.2d 1254 (3rd Cir. 1970); Local 53, 
Asbestos Workers v. Vogler, 407 F.2d 1047 (5th Cir. 1969); 
U.S. v. Jacksonville Terminal, 451 F.2d 418 (5th Cir. 1971), 
cert, denied 406 U.S. 906 (1972).

28



alterations would be proper. Federal courts, under 
Title VII, are obligated to fashion relief, including the 
modification of labor agreements which unlawfully dis­
criminate, which will fully compensate victims of racial

2 0/ , ,discrimination.—  The policy and purpose of New York laws
favoring complete eradication of racial discrimination and 
Title VII deferral provisions which incorporate New York 
laws would be subverted if labor contracts are held to be 
outside the purview of the Executive Law. The result 
would limit claimants under New York State laws to relief, 
regardless of the discriminatory effect of contract pro­
visions, which does not affect the contract. However, 
claimants under federal law would, merely because of the 
forum, be entitled to greater relief. Thus, the Railway 
Labor Act must be read in light of the subsequent enact­
ment of Title VII and New York laws prohibiting racial 
discrimination in employment and not as a bar to seniority 
alterations structured to afford full relief against pro­

hibited discrimination.
This Court should uphold the relief given to respondent 

Jackson which includes retroactive hire and seniority rights, 
for as the Fourth Circuit has so cogently stated:

—  Bowe v. Colgate Palmolive Company, 416 F.2d 711, 721 _
(7t.h Cir. 1969) ; pettway v. American Cast Iron Pipe Company, 
494 F.2d 211 (5th Cir. 1974).

29



[A]11 employees are entitled to the same 
expectations regardless of race, color, 
religion, sex, or national origin. Where 
some employees now have lower expectations 
than their coworkers because of the in­
fluence of one of these forbidden factors, 
they are entitled to have their expectations 
raised even if the expectations of others 
must be lowered in order to achieve the 
statutorily mandated equality of opportunity. 
Robinson v. Lorillard Corporation, 444 F.2d 
791, 800 (4th Cir. 1971).

In addition, it is well established that because the
Division has wide discretion in its choice of a remedy, "the 
courts will not interfere except where' the remedy selected
has no reasonable relation to the unlawful practices found
to exist." Holland v. Edwards, 307 N.Y. 34, 46, 119 N.E.2d
581, 585 (1954) (dictum); Lawrence Gardens, Inc, v. State
Com'n for Human Rights, 53 Misc.2d 20, 277 N.Y.2d 548, 551

2 1/(1963). Here, the remedy is precisely fashioned to
place Mr. Jackson in the position which he would have oc­
cupied but for the unlawful discrimination and is well within 
the Division's discretion. Furthermore Section 300 of the 
Executive Lav/ provides that the statute shall be construed 
liberally to accomplish its purpose of eradicating prohibited
discrimination.
21/—  Recently courts have upheld the latitude of the Division's 
choice of remedies upon a finding of racial discrimination. 
Board of Education of Union Free School District v. N.Y.S.
Div. of Human Rights, 345 N.Y.S.2d 93, 99 (App. Div., 2nd 
Dept. 1973); Mize v. State Division of Human Rights, 6 CCH 
EPD <j[8925 (N.Y. Ct. of Appeals, Oct. 18, 1973), where this 
Court ruled back pay (emphasis'added) was appropriate upon 
finding of discrimination under the Executive Law; see also 
City of Albany v. I-ielsby, 328 N.Y'.S.2d 658, 652 (N.Y. Ct. of
Appeals, 1972).

30



B. The New York State Human Rights Law Has The 
Same Force And Effect As Title VII of The 
Civil Rights Act of 1964.

Appellees erroneously alleged that respondents Division 
and Appeal Board exceeded, their lawful authority by ordering 
that respondent Jackson be hired with retroactive seniority 
rights since such action would result in a modification of 
the collective bargaining agreement between LIRR and the 
Brotherhood of Locomotive Engineers which can only be altered 
pursuant to the provision of the Federal Railway Labor Act, 
pursuant to which the agreement was executed.

As was fully discussed in Point A, above, it is not 
the collective bargaining agreement which will be modified 
by the Division's order. Rather, the effect of placing 
respondent Jackson in the position he would have occupied 
had he not been discriminatorily denied employment on 
June 24, 1970, is merely to modify the seniority expectancies 
of those firemen employed by the LIRR since June 24, 1970.
The order of the Division in no way modifies the collective 
bargaining agreement.

However, assuming arguendo, that the Division's order 
has the effect of modifying the collective bargaining agree­
ment, the cases cited in Point A above provide ample authority 
that collective bargaining agreements may be altered by the 
courts under Title VII. Specifically, the courts have 
altered collective bargaining agreements executed pursuant

31



to the Railway Labor Act. Norman v. Missouri Pacific Rail­
road, supra; U.S. v. Jacksonville Terminal, 451 F.2d 418 
(5th Cir. 1971), cert, denied 406 U.S. 906 (1972). The 
court in Norman expressly recognized that Title VII of the 
Civil Rights Act of 1964 may provide additional statutory 
relief to an individual even when the industry is subject 
to the Railway Labor Act. 414 F.2d at 82-83.

Appellant Jackson submits, further, that the New York
State Human Rights Law has the same force and effect as the
federally passed Title VII of the Civil Rights Act of 1964.
Congress in effect adopted the New York Law as well as the
fair employment laws of many other states when it provided
in Section 706(c) of the Act for deferral of charges to
states with enforceable laws prohibiting employment practices
made unlawful under the federal act. The intent of Congress
is clearly expressed in the statement of the late Congressman
Celler, Chairman of the House Judiciary Committee which
drafted the version which provided the basic format of the
subsequently passed legislation:

To the maximum extent possible, Title VII 
provides for the utilization of existing 
State fair employment laws and procedures.
Existing state laws will remain in effect 
except as they conflict directly with federal 
law. Through cooperative efforts with state 
and local agencies, Title VII envisions an 
effective and harmonious mobilization of 
federal, state and local authorities in attack­
ing this national problem. 22/

— ' From debate in the House January 31, 1964, quoted, in 
Legislative History of Titles VII and XI of Civil Rights Act 
of 1964 (Washington, D.C.: Gov't Printing Office), p. 3284.



Thus, it is clear that appellant Jackson is entitled 
under the New York Human Rights Law to the same relief that 
he would receive under Title VII; that the Division and 
Appeal Board ordered relief that would be appropriate under 
Title VII? and that respondents Division and Appeal Board 
were completely within their lawful authority in ordering 
such relief.

III. This Court Should Award Reasonable Attorneys'
Fees To Appellant Jackson.

(a) The Human Rights Law Should Be Read in Conjunction 
with Title VII of the Civil Rights Act.

The award to plaintiff of attorneys' fees in an action 
pursuant to the Human Rights Law is supported by reading into 
the New York law the provisions of Section 706 (k) of Title 
VII of the Civil Rights Act of 1964 which provides for the 
award of counsel fees to a prevailing plaintiff.

A number of decisions in the federal courts have sus­
tained the award of attorneys' fees where not expressly pro­
vided for by statute, but where the statute in question is 
read in conjunction with a similar statute which does provide 
for such award. For example, in Lee v. Southern Home Sites 
Corp., 444 F.2d 143 (1971), the Fifth Circuit read into 42 
U.S.C. § 3612(c), dealing with the award of counsel fees, 
and awarded such fees even though not specifically provided 
for by the legislation. The court stated at 444 F.2d 148:

33



. . . [I]n fashioning an effective remedy
for the rights declared by Congress one 
hundred years ago courts should look not 
only to the policy on the enacting Congress 
but also to the policy embodied in closely 
related legislation. Courts work inter- 
stitially in an area such as this.

The Fifth Circuit applied its reasoning in Lee to an 
employment discrimination action brought pursuant to 42 
U.S.C. § 1981. Cooper v, Allen, 467 F.2d 836 (5th Cir.
1972), and. attorneys' fees were subsequently awarded by
the district court on remand, Civ. No. 13257, N.D. Ga., May 18
1973, aff'd 493 F.2d 765 (5th Cir. 1974).

It is clear that it is even more appropriate here that
§ 706(k) of Title VII of the civil Rights Act of 1964 be
react into the New York Human Rights Law inasmuch as the Congre
specifically adopted the provisions of the New York Human
Rights Law and other state fair employment statutes into
the federal mechanism created to eliminate unlawful dis-

23/crimination under Title VII (§706[cj).—

(b) Awards of Attorneys' Fees to Prevailing Plaintiffs 
Are Favored in The Interests of "Fair Justice" And 
Where Plaintiffs Act to Effectuate Public Policies.

Even should this Court disagree with appellant's con­
tention that provision for the award of attorneys' fees may 
be read into the Human Rights Law through Title VII, such

23/ Supra at 32.
34



award is nevertheless appropriate under traditional equit­
able principles.

The United States Supreme Court has long recognized 
that in equitable actions such as this the courts have the 
authority and responsibility to award attorneys' fees to a 
prevailing plaintiff where such an award is consistent with 
"fair justice." Sprague v, Ticonic National Bank, 307 U.S. 
164, 164-65 (1939); Internal Improvement Fund v. Greenbough, 
105 U.S. 527 (1882). See also Rolax v. Atlantic Coast Line 
R. Co., 186 F.2d 473 (4th Cir. 1951) (union racial dis­
crimination) .

More recently, there has been a liberalization in the 
awarding of attorneys' fees to prevailing plaintiffs. 
Particularly, there now exists a very substantial line of 
decisions where, despite the absence of express statutory 
authority, attorneys' fees have been awarded to prevailing 
plaintiffs, often characterized as "private attorneys 
general," who by bringing the litigation have acted to ef­
fectuate important public policies. The Supreme Court 
enunciated this concept in two recent decisions, Hall v. 
Cole, 412 U.S. 1 (1973) (expulsion from union membership) 
and Mills v. Electric Auto-Lite Co., 396 U.S. 375 (1970) 
(violation of securities law). Under the same rationale, 
attorneys' fees were awarded to prevailing plaintiffs in 
Lee v. Southern Home Sites, 429 F.2d 290 (5th Cir. 1970);

35



Knight v. Auciello, 453 F.2d 852 (1st Cir. 1972) (dis­
crimination in sale or rental of housing); Cooper v. Allen, 
supra; Jinks v. Mays, 350 F. Supp. 1037 (N.D. Ga. 1972);
NAACP v. Allen, 340 F. Supp. (M.D. Ala. 1972) (discrimination 
in public employment) ; Sims v. Amos, 340 F. Supp. G9.1 (M.D. 
Ala. 1972) (legislative reapportionment); La Raza Unida 
v. Volpe, 57 F.R.D. 94 (N.D. Cal. 1972) (environmental pro­
tection); Ross v. Goshi, 353. F. Supp. 949 (D. Hawaii 1972) 
(First Amendment); Wyatt v. Stickney, 344 F. Supp. 387 (M.D. 
Ala. 1972) (involuntary confinement for mental treatment); 
Ford v. White (S.D. Miss., Cir. No. 1230 (N), opinion dated 
August 4, 1972) (jury discrimination); Lyle v. Teresi, 327 
F. Supp. 683 (D. Minn. 1971) (unlawful arrest).

In a line of cases relating to racial discrimination in 
educational institutions brought under 42 U.S.C. § 1983, 
courts have awarded attorneys' fees in an effort to encourage 
individuals injured by racial discrimination to seek judicial 
relief. Bell v. School Board, 321 F.2d 500 (4th Cir. 1963), 
reversing the lower court's refusal to allow attorneys' fees; 
Rolfe v. County Board of Education, 391 F.2d 77 (6th Cir. 
1968); Dyer v. Love, 307 F. Supp. 974, 986 (N.D. Miss. 1969).

(c) The Failure to Award Attorneys' Fees Will 
Severely Limit The Effectiveness of The 
Policies Sought to Be Carried Out Under 
the Human Rights Law.

36



The failure of this Court to award reasonable 
attorneys' fees to appellant Jackson would have the 
deleterious effect of severely limiting the representation 
of aggrieved parties by competent legal counsel before the 
state administrative and judicial tribunals. Aggrieved 
parties such as appellant Jackson, who are victims of em­
ployment discrimination are not in the financial position 
to bear the costs of such legal representation.

It is true, of course, that aggrieved parties are pro­
vided and may rely on legal representation through the 
services of Division attorneys. But the plain fact is that
this is simply not enough; private attorneys continue to 

-24/be needed. At the hearing appellant's private counsel car­
ried out the bulk of the examination of witnesses and parties. 
Counsel's further representation during the appeal proceed­
ings before the Appeal Board resulted in the affirmance of 
the Division's decision in favor of respondent. The 
Division, while having the right to do so, has not appeared 
at any of the appeals of this matter. Private attorneys are

24/
— '  Courts have held, that attorneys' fees may be awarded 
even if plaintiff's counsel are salaried employees of civil 
rights organizations. Clark v. American Marine Corp., 320 
F. Supp. 709 (E.D. La. 1970), aff'd 437 F.2d 959 (5th Cir. 
1971); Sanders v. Russell, 401 F.2d 241 (5th Cir. 1970);
La Raza Unida v. Volpe, 57 F.R.D. 94 (N.D. Cal. 1972).

37



an important aspect of enforcing the state law against 
discrimination in employment. In cases where private 
attorneys are retained, the refusal to allow attorneys' 
fees may result in aggrieved parties bypassing the state 
forum for the sole reason that they can get attorneys' 
fees in the federal forum.

Under Title VII the federal government also provides 
aggrieved parties with attorneys. Nevertheless, the 
federal statute recognizes the need for private counsel 
ana provides for the award of attorneys' fees to assure 
that aggrieved parties will not be denied access to a full 
and complete remedy against the discrimination they have 
suffered.

Thus, not only would the failure to grant attorneys' 
fees frustrate the intent of Congress which favors reso­
lution or complaints of discrimination in employment on 
the state level, but would, moreover, have a tendency to 
dilute the effectiveness of the State's Human Rights Law.

Federal courts have consistently held that plaintiffs 
in proceedings under state laws may seek additional relief 
in federal court should resolution of the issues prove in­
adequate in the state forum. Cooper v. Philip Morris, Inc,, 
464 F.2d 9, 10-11 (6th Cir. 1972); Voutsis v. Union Carbide 
Cor̂ ._, 452 F. 2d 889, 893 (2nd Cir. 1971). It is well

38



established under federal law that a plaintiff obtaining 
relief against unlawful discrimination is entitled, as 
'private attorneys general,' to an award of attorneys' 
fees. Therefore appellant in this action would not be fore­
closed from seeking supplemental relief as to attorneys' 
fees in case of denial by this Court, in a federal forum. 
Hence to deny appellant's request for an award of reasonable 
attorneys' fees would erroneously afford incomplete relief 
and foster repetitious litigation,therefore inefficient con­
sumption of judicial time.

(d) In Awarding Attorneys’ Fees The Court Should
Consider The Benefits Resulting From Counsel's 
Representation Before The Division And Appeal 
Board.

Appellant Jackson requests the award of reasonable
attorneys' fees covering the services of counsel from
September 10, 1970 to date during both the administrative

25/and judicial aspects of this proceeding.
In addition to the consideration of counsel's services 

on behalf of appellant before this Court, appellant re­
quests the Court's consideration of counsel's competent re­
presentation of appellant prior to, during and subsequent 
to the administrative hearing before the Division and Appeal 
Board which resulted in a favorable decision and order for 
fair and equitable relief for appellant.

25/
— ' Affidavits itemizing legal services rendered were 
attached to documents submitted to the Appellate Division.

39



It. is therefore incumbent upon this Court in awarding 
attorneys' fees to consider not only the benefits to 
appellant Jackson by virtue of counsel's competent repre­
sentation before the courts, but also the benefits to 
appellant Jackson from counsel's representation before 
the state administrative tribunals- Angoff v. Goldfine,
270 F. 2d 185 (1st Cir. 1959).

Conclusion

For the reasons stated above this Court should reverse 
the decision of the Appellate Division and reinstate the 
decision and orders of the State Human Rights Division and 
Appeal Board and instruct the Appellate Division to issue 
an order of immediate enforcement of the remedial provisions. 
This Court should also order the award of reasonable at­
torneys' fees to appellant Jackson to include both the 
administrative and judicial phases of this proceeding.

Respectfully submitted,

10 ,Columbus 'Circle
5ui-tei 2030, New York, N.Y. 10019
(212) 586-8397

Attorneys for Appellant
40



APPENDIX

ADDITIONAL PAPERS TO THE COURT OF APPEALS



At <i Term <>f the Appellate Division of the Supreme Court 
uf the Slab of New York, Second Judicial Department, 
held in Kings County nr. February 4, 1974.

HON. FRANK A. GU1.L0TA, Prpsldlng Justice,
ItQALa Ĵ !A2I22tii}D AiOaiOaig «
1 u. cm a .tt* 6^ » I
HON. H E N R Y  J. L A T H A M  f
HON. J. IRWIN SHAPIRO \ I '- o r im ,' Jn.uicc:.

I IlClM AML’ LTITAUL' 5S3G T - BA 
HON. MARCUS G. CHRIST 
HON. ARTHUR D. BRENNAN'J' -r'' " »* * •  ̂J , °

“1C
Tito Long lolartd Hail Road Company e t
G A e fc

Potitlonero,
v.

Hew Yorh Diviolon of Hunan Righto et 
d  i -

Respondents.

0 i\ 0 £ R

A proceeding ht »ing been inotituted in this court by tho 
cbovs w jz sd petitioners, Long la land Rail Hoad Cc.r.pany et cl.„ 
by petition verified June '?29 1973 „ purouant to flection &~J0 of 
the? Huocutivo Lew to review an order of the State Huaan Righto 
Appeal Bearde d&aed June 11, 1973, uhich affirmed c.zt order o 2  
ti.o bteto Diviolon of Hur.au Righto 8 dated February 0* 1972 aid
i- - . C i .  c .  t -X a. i* i ,  yA  > t  ■ 'A  iŵ  t .A . t ' - i  . .  X. 1 Cx X . .^  p . j  v. &.U X .O .tC t . 0  R A a i t y  ‘V L
dioeriaiincSirtg egainet tho ccaylainoni haroivj by denying hia 
an Gvailabla nooition because of hia race and color:

lieu, upen the cold petition* msa jreudxn of pot it ten ora; 
fcho r.iM'.orcnduM of reason dent Jochoen; upon oil the papero filed 
hcMolnj and the proceeding having boon argued by Richard II. 
SC*.cC:ooe Ecq.p of counsel for tho potitionarc end argued by
* -> *•■ * 'y ’ ' 1  ̂ A i- ^ .» * * - W » A. k . i i t i U v n  «k »*- *• W i» • v' ^ V* W| )̂ < « »—» — * *

JcaCracn} duo d--'1 'boratica having been had thereon? and upon 
UhSo court*a opinion and decision oil j hosrotoforo fi’iod and 
\— .aj a part licrcox p It io unaniiaoualy j

di
RUERZD that 
aeJ, vrifchcut

the orders 
coats.

are hereby annulled and ccaplaiv.t

Enter:

i

Clerk of the* Appall cto Dlvluicn



CERTIFICATE OF SERVICE

I hereby certify that copies of the foregoing Brief 
for Appellant were mailed this 8th day of July, 1974, postage 
prepaid to the following counsel of record:

George M. Onken, Esq.
Lawrence Rubin, Esq.
Richard H. Stokes, Esq.
Attorneys for petitioner- Appellee

Jamaica Station - Long Island Railroad 
Company

Jamaica, New York 11435