holding that New York's Equal Protection Clause “is no broader in coverage than the Federal Provision”Summary of this case from N.Y. Pet Welfare Ass'n, Inc. v. City of Elizabeth
Argued June 4, 1985
Decided June 28, 1985
Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, Alvin F. Klein, J.
John P. Hale and Patrick B. Silva for appellants in the first above-entitled action. Joseph Polizzotto, William J. Moss, Edward P. O'Keefe and William D. Smith for appellant in the second above-entitled action. David Zwiebel and Aaron Twerski for appellant in the third above-entitled action.
Frederick A.O. Schwarz, Jr., Corporation Counsel ( Alfred Weinstein, Dennis deLeon, Michael S. Adler and Paul Rephen of counsel), for respondents in the first, second and third above-entitled actions. Nathan Lewin and Dennis Rapps for the National Jewish Commission on Law and Public Affairs, amicus curiae. David L. Benetar and Stanley Schair for The New York Chamber of Commerce and Industry, amicus curiae. Gregory K. Hiestand, Joy D. Oberman, Robert E. Williams, Douglas S. McDowell and Lorence L. Kessler for The Equal Employment Advisory Council, amicus curiae. Robert Abrams, Attorney-General ( Robert Hermann, O. Peter Sherwood, Rosemarie Rhodes, Lawrence S. Kahn and Debra L. Raskin of counsel), for the State of New York, amicus curiae. Thomas B. Stoddard and Madeline Kochen for New York Civil Liberties Union, amicus curiae. Robert L. Becker, Rosaria Esperon, Julius L. Chambers, Charles Steven Ralston, Ronald L. Ellis, David Seth Michaels, David Raff, Margaret Burnham, Stan Mark, Marcia Levick, Barbara Rochman, Sarah Wunsch, Abby Rubenfeld, Madeline Kochen, Thomas B. Stoddard and Douglas Kellner for Puerto Rican Legal Defense and Education Fund, Inc., and others, amici curiae. Richard E. Feldman for Lambda Legal Defense and Education Fund, Inc., amicus curiae.
The question on this appeal is whether the Mayor of the City of New York has the authority to promulgate an Executive Order prohibiting employment discrimination by city contractors on the basis of "sexual orientation or affectional preference." The Appellate Division held that the Mayor had this power. We disagree and hold that because of the separation of powers delineated in the City Charter, the Mayor has no authority to initiate such a policy.
On April 25, 1980, the Mayor of the City of New York issued Executive Order No. 50 "to ensure compliance with the equal employment opportunity requirements of City, State and Federal law in City contracting" (Executive Order No. 50 § 1). The Executive Order applies to virtually every contract with the city, and requires that those entering into such contracts agree to ensure "equal employment opportunity" in all of their employment decisions. "Equal employment opportunity," as defined in section 3 (i) of the order, includes not discriminating on the basis of "sexual orientation or affectional preference," terms which all parties agree refer to a person being homosexual or bisexual rather than heterosexual. The order provides that the Mayor's Bureau of Labor Services has the responsibility to implement, monitor compliance with, and enforce these equal employment requirements.
Pursuant to this grant of authority, the Bureau of Labor Services promulgated regulations, effective January 21, 1982, which require that specific language implementing Executive Order No. 50 be inserted into contracts with the city. In the required language, a contractor agrees, among other things, not to discriminate in any employment decision on the basis of "sexual orientation or affectional preference" and to state that condition in all solicitations or advertisements for employees.
Agudath Israel and the Salvation Army, the plaintiffs in two of three actions consolidated on appeal, are not-for-profit religious and charitable corporations. Both have annual contracts with the city, pursuant to which they provide social services such as day care facilities, counseling services, and senior citizen centers, and the city pays a portion of the costs of such services. The plaintiffs in the third action (the "Under 21" action) are not-for-profit corporations under the sponsorship of the Roman Catholic Archdiocese of New York, and they too provide social service programs partially funded through annual contracts with the city.
The plaintiffs in all three actions object on religious grounds to signing a contract in which they would agree not to discriminate on the basis of "sexual orientation or affectional preference," and have advised the city that they will not sign any contracts which contain such a condition. The city, in turn, has notified the plaintiffs that the contracts for the services they provide will not be renewed unless plaintiffs are in full compliance with Executive Order No. 50 and the Bureau of Labor Services' regulations promulgated thereunder, including the provision for insertion of the objected-to language into all the contracts.
Faced with the expiration of their contracts, plaintiffs brought three separate actions, each seeking a declaration that the portion of Executive Order No. 50 pertaining to "sexual orientation or affectional preference" is beyond the scope of the Mayor's authority, and thus void, and a permanent injunction against enforcement of this part of the order and the regulations implementing it.
The plaintiffs in the Under 21 action included in their complaint a similar facial challenge to all of Executive Order No. 50 as well as a challenge to all of Executive Order No. 50, as applied to religious or religiously sponsored corporations. We reject the argument that the Mayor may not enforce existing State and city laws prohibiting employment discrimination through the establishment of an additional "enforcement mechanism" (the Mayor's Bureau of Labor Services), and thus decline to hold all of Executive Order No. 50 invalid on its face.
As to the second additional challenge, we cannot on the record before us determine the extent to which 1st Amendment and 14th Amendment concerns would be implicated by enforcement of the various aspects of the order on the Under 21 plaintiffs, and we thus decline to issue an advisory opinion on whether the Mayor may regulate the employment practices of a religious corporation contracting with the city.
The plaintiffs in all three actions moved for summary judgment, and the motions were referred to the same Justice at Special Term. Special Term held that the challenged portion of Executive Order No. 50 was an impermissible usurpation of legislative power by Mayor Koch, and, in three separate judgments, declared that portion unlawful and permanently enjoined the city and the Mayor from enforcing it.
The Appellate Division consolidated the three appeals by the defendants, and in a split decision, disagreed with Special Term's conclusion that the Mayor had exceeded his authority insofar as Executive Order No. 50 related to "sexual orientation or affectional preference". Rejecting the separation of powers concerns expressed by Special Term and the dissenting Justice at the Appellate Division, the majority at the Appellate Division characterized those principles as "vestigial relics * * * relied upon for State court holdings in fewer and fewer desultory cases", and concluded that the Mayor "did no more than make express the policies and principles [of equal protection] already firmly embedded in our State and Federal Constitutions." (108 A.D.2d, at pp 258-259.) Upon "search of the record," the Appellate Division granted defendants summary judgment declaring Executive Order No. 50 and the regulations promulgated thereunder constitutional and valid.
Plaintiffs in the Under 21 action cross-appealed from the judgment at Special Term insofar as it did not invalidate all of Executive Order No. 50 ( see, n 1, supra).
The Appellate Division order "modifies" the Special Term judgments as it affirms the judgment in the Under 21 action insofar as it did not invalidate all of Executive Order No. 50.
II.The plaintiffs' contention that the Mayor lacked the authority to proscribe discrimination by city contractors on the basis of "sexual orientation or affectional preference" is a facial attack on this portion of Executive Order No. 50, and our resolution of the case does not depend on the status of the plaintiffs as religious organizations. Nor do we decide today the extent to which New York City may regulate the employment practices of those with whom it does business. Rather, the sole issue we address is the extent of the authority in this area of the chief executive officer of the city, the Mayor, and specifically, whether the executive may forbid discrimination by city contractors on a ground not covered by any legislative enactment.
One of the fundamental principles of government underlying our Federal Constitution is the distribution of governmental power into three branches — the executive, legislative and judicial — to prevent too strong a concentration of authority in one person or body ( see, Youngstown Co. v Sawyer, 343 U.S. 579; id., at pp 634, 635 [Jackson, J., concurring]; 1 Story, Commentaries on the Constitution § 525 [5th ed]). We have consistently recognized that this principle of separation of powers among the three branches is included by implication in the pattern of government adopted by the State of New York ( see, e.g., Matter of LaGuardia v Smith, 288 N.Y. 1, 5-6; Matter of County of Oneida v Berle, 49 N.Y.2d 515, 522), and, contrary to the Appellate Division's characterization of the doctrine as a "vestigial relic," we have very recently unanimously reaffirmed its continuing vitality ( see, Subcontractors Trade Assn. v Koch, 62 N.Y.2d 422, 427). While the doctrine of separation of powers does not require the maintenance of "`three airtight departments of government'" ( Nixon v Administrator of Gen. Servs., 433 U.S. 425, 443; 1 Story, Commentaries on the Constitution § 525, supra), it does require that no one branch be allowed to arrogate unto itself powers residing entirely in another branch ( Youngstown Co. v Sawyer, supra; Matter of Nicholas v Kahn, 47 N.Y.2d 24, 30-31).
Of course, the pattern of government established for New York City by the City Charter is not identical to that of the United States or the State of New York. Still, the City Charter does provide for distinct legislative and executive branches: the City Council "shall be vested with the legislative power of the city, and shall be the local legislative body of the city" (New York City Charter, ch 2, § 21), while the Mayor "shall be the chief executive officer of the city" ( id., ch 1, § 3). Thus, our prior decisions have held that, no matter how well-intentioned his actions may be, the Mayor may not unlawfully infringe upon the legislative powers reserved to the City Council ( see, Subcontractors Trade Assn. v Koch, supra; Matter of Fullilove v Beame, 48 N.Y.2d 376; Matter of Broidrick v Lindsay, 39 N.Y.2d 641).
The authority conferred upon the Mayor, as chief executive officer, does, of course, include the power to enforce and implement legislative enactments ( Subcontractors Trade Assn. v Koch, 62 N.Y.2d, at p 427, supra). Indeed, if the City Council were to enact valid legislation proscribing discrimination by city contractors, or employers within the city generally, on the basis of "sexual orientation or affectional preference," the Mayor would have the duty to enforce it. The City Council, however, has never enacted any such law despite the introduction of bills which would have done so. The New York City Human Rights Act, in defining the types of "unlawful discriminatory practices" which an employer may not engage in, contains no reference to "sexual orientation or affectional preference," or to any similar classifications (Administrative Code of City of New York § B1-7.0). Similarly, Administrative Code § 343-8.0, which restricts discriminatory employment practices by many city contractors, contains no such classification.
The relevant provisions of State law are closely akin to those of the city. The State Human Rights Law, which covers employment discrimination (Executive Law § 296), does not include among the protected classifications anything analogous to "sexual orientation or affectional preference," nor does Labor Law § 220-e, which mandates the inclusion of an antidiscrimination provision in most State and municipal contracts, encompass any such category. Finally, there is no Federal statute which the Mayor might be implementing. Title VII of the 1964 Civil Rights Act ( 42 U.S.C. § 2000e), the employment discrimination provision of Federal civil rights legislation, does not include homosexuals or bisexuals among the protected classes of employees ( see, e.g., DeSantis v Pacific Tel. Tel. Co., 608 F.2d 327; Blum v Gulf Oil Corp., 597 F.2d 936).
The issue we face, therefore, is whether the Mayor, in including within the coverage of Executive Order No. 50 "sexual orientation or affectional preference," despite the fact there is no legislative enactment prohibiting employment discrimination on such a basis, acted within the scope of his authority as the chief executive officer of the city.
Defendants contend that the Mayor's authority to promulgate the challenged portion of Executive Order No. 50 stems from two aspects of his functions as executive — the power to regulate the terms of city contracts, and the power or duty to prevent the city from engaging in or funding discriminatory conduct which violates the equal protection clauses of the Federal and State Constitutions. We address each of these arguments in turn.
At Special Term, defendants asserted as a third basis for validating all of Executive Order No. 50 an alleged "ratification" through a resolution of the New York City Board of Estimate. Defendants have since abandoned any reliance on the Board of Estimate's actions in attempting to uphold the order, and none of the complaints in the actions before us seeks to invalidate any Board of Estimate resolutions. Thus, the issue of whether the Board of Estimate may require that all contracts submitted to it for approval must prohibit discrimination by the contractor on the ground of "sexual orientation or affectional preference" is not before us on this appeal.
A.Under section 8 (a) of the City Charter, the Mayor has all of the residual powers of the city. Thus, in Matter of Bauch v City of New York ( 21 N.Y.2d 599, 605), we noted that the Mayor had the authority to enter into contracts on the city's behalf and to determine the manner of transacting its business and affairs. Defendants contend that this power to regulate the terms of the city contracts gives the Mayor the authority to forbid parties who contract with the city from discriminating on the basis of "sexual orientation or affectional preference".
In Matter of Broidrick v Lindsay ( 39 N.Y.2d 641, supra) and Matter of Fullilove v Beame ( 48 N.Y.2d 376, supra), we held that attempts by the Mayor of New York City to mandate some type of affirmative action in employment decisions by city contractors were impermissible infringements upon the legislative power because they utilized a remedial device which, rather than implementing a legislative policy, enacted a new policy not embraced by the City Council. Defendants rely on language in Broidrick and Fullilove approving executive action which "`only would enlarge the pool of persons eligible for employment based on discrimination-free merit selection'" ( Matter of Fullilove v Beame, 48 N.Y.2d, at p 379, supra; Matter of Broidrick v Lindsay, 39 N.Y.2d, at p 649, supra). This statement, however, was not intended to authorize the executive to enact his own views of what persons should be protected from employment discrimination without regard to the laws enacted by the Legislature. Rather, approval of enlarging the pool of employees was in reference to an executive implementing appropriate remedial relief to enforce a legislative policy.
Two other decisions from this court further explicate this distinction. In Rapp v Carey ( 44 N.Y.2d 157), we invalidated a Governor's Executive Order requiring a broad range of State employees within the executive branch, including many not subject to removal by the Governor, to file financial disclosure statements and to abstain from various political and business activities not otherwise prohibited. We held that the order in question went beyond the powers of the Governor, including the power to implement legislation, and unlawfully "assume[d] the power of the Legislature to set State policy in an area of concededly increasing public concern" ( id., 44 N.Y.2d, at p 160). Most recently, in Subcontractors Trade Assn. v Koch ( supra), we held that the Mayor of New York City did not have the authority to mandate that at least 10% of all construction contracts awarded by the city be given to "locally based enterprises," as such an order went beyond the Mayor's "function of implementing general Charter-conferred powers" ( id., 62 N.Y.2d, at p 429). Of particular relevance here is our recognition in Subcontractors that "the general power to enter into contracts which is bestowed upon the executive branch of government ordinarily cannot serve as a basis for creating a remedial plan for which the executive never received a grant of legislative power" ( id., at p 428).
Thus, as Special Term recognized, our prior cases hold that an executive may not usurp the legislative function by enacting social policies not adopted by the Legislature. Private employers in this State are free to make employment decisions on whatever basis they choose, as long as the basis is not prohibited by law ( cf. O'Connor v Eastman Kodak, 65 N.Y.2d 724; Murphy v American Home Prods. Corp., 58 N.Y.2d 293). Congress, the State Legislature and the City Council have enacted laws restricting the bases upon which most private employers may discriminate. None of these legislative bodies, however, has chosen to include a person's "sexual orientation or affectional preference" among the proscribed bases, nor have they established any general requirement that employment decisions must be merit-based. An attempt by the Mayor to broaden the class of persons protected from discrimination by private employers, or to require that all employment decisions be merit-based, however commendable, is an enactment of policy which the City Charter leaves to the City Council. Accordingly, the challenged portion of Executive Order No. 50 does not fall within the Mayor's Charter-conferred power to regulate the terms of city contracts.
We reject the dissent's argument that the challenged portion of Executive Order No. 50, by restricting non-merit-based discrimination, is permissible as an attempt by the Mayor "to ensure that the city receive the greatest value for the lowest possible cost" (dissenting opn, at p 367). To begin, as the most apparent consequence of the enforcement of this part of the order would be a reduction in the number of entities willing to contract with the city, it is unclear how the city would economically benefit from such enforcement. If a city agency feels that the price of a particular contract is too high due to a contractor's employment policies, it is of course free to choose some other contractor. More significantly the dissent itself concedes that Executive Order No. 50 is an enactment of social policy, notwithstanding the economic arguments now set forth by defendants, and thus is akin to the remedial plan in Subcontractors which we unanimously held invalid. The Federal cases cited by the dissent in support of this argument (dissenting opn, at p 368) are distinguishable, as those courts were construing a specific grant of authority to the executive by Congress. Any dictum in those cases that the president has the authority to regulate the employment practices of government contractors even absent authorization by Congress was rejected by a more recent Federal case ( see, Liberty Mut. Ins. Co. v Friedman, 639 F.2d 164, 167-172, n 13).
The second basis put forth by the defendants for upholding the validity of the portion of Executive Order No. 50 covering "sexual orientation or affectional preference" is that the Mayor is properly acting to ensure compliance with constitutional guarantees of equal protection. The Appellate Division majority accepted this argument, concluding that the Mayor has the constitutional obligation, stemming from the equal protection clauses of the Federal and State Constitutions, to prevent all organizations contracting with the city from engaging in invidious discriminatory employment practices, which would include discrimination on the basis of sexual orientation.
Section 1 of the 14th Amendment to the United States Constitution provides in part that "No State shall * * * deny to any person within its jurisdiction the equal protection of the laws." This provision extends, of course, to subdivisions of a State, such as New York City ( see, e.g., Hunter v Erickson, 393 U.S. 385). Plaintiffs contend, however, that the Mayor is attempting to "enforce" the equal protection requirements of the 14th Amendment in a manner which is reserved to Congress. Section 5 of the 14th Amendment states that "Congress shall have power to enforce, by appropriate legislation, the provisions of this [Amendment]." The significance of this section is that it gives to Congress some authority to effectively enlarge the substantive reach of the equal protection clause by enacting laws prohibiting certain action even though such action would not otherwise be found by the judiciary to violate equal protection ( see, Katzenbach v Morgan, 384 U.S. 641; United States v Guest, 383 U.S. 745, 774 [Brennan, J., concurring]; Tribe, American Constitutional Law, at 28-29, 265-267; cf. City of Rome v United States, 446 U.S. 156 [enforcement of 15th Amend]).
We have held that the State constitutional equal protection clause (NY Const, art I, § 11) is no broader in coverage than the Federal provision ( see, e.g., Matter of Esler v Walters, 56 N.Y.2d 306, 313-314) and this equation with the Federal provision extends to the requirement of "State action" in order for the equal protection clause to be applicable ( Dorsey v Stuyvesant Town Corp., 299 N.Y. 512, 530-531, cert denied 339 U.S. 981). In Dorsey, we recognized that the State provision approved at the Constitutional Convention of 1938 and adopted by the electorate that same year, was designed simply to "`embod[y] in our Constitution the provisions of the Federal Constitution which are already binding upon our State and its agencies'" ( id., at p 530 [quoting from 2 Rev Record of N Y State Constitutional Convention, 1938, at 1065]). The dissent's reliance on Sharrock v Dell Buick-Cadillac ( 45 N.Y.2d 152) is misplaced, as that case concerned the interpretation of the due process clause in the State Constitution (art I, § 6), a provision enacted prior to, and containing language materially different from, its counterpart in the 14th Amendment, and thus readily supporting a broader interpretation than the Federal provision. Accordingly, we need only analyze the equal protection issue under the framework of the 14th Amendment.
Although the Mayor does have a responsibility to uphold the United States Constitution, and a duty to prevent actions by the city which would violate the 14th Amendment's requirement of equal protection, as interpreted by the judiciary, he does not have the power to expand the coverage of the equal protection clause. The Mayor, unlike Congress, has no authority to prohibit discrimination merely because he feels that the prohibition furthers the goals of the 14th Amendment. His duty extends only to the prohibition of such discrimination if it in fact violates that provision. Accordingly, the Mayor's inclusion of "sexual orientation or affectional preference" in Executive Order No. 50 can be upheld under the 14th Amendment only if either discrimination on this basis by city contractors would violate the equal protection clause, or if the city would be violating the clause by contracting with those who so discriminate.
The prohibitions in the 14th Amendment are directed at the "State," and they "`erect no shield against merely private conduct, however discriminatory or wrongful'" ( Blum v Yaretsky, 457 U.S. 991, 1002, quoting Shelley v Kraemer, 334 U.S. 1, 13; see, Jackson v Metropolitan Edison Co., 419 U.S. 345, 349). In order for a court to conclude that there is "State action," thus making equal protection requirements applicable, the alleged discriminatory conduct of a private employer must be "fairly attributable to the State" ( Lugar v Edmondson Oil Co., 457 U.S. 922, 937; see, Matter of Wilson, 59 N.Y.2d 461, 476).
The Supreme Court has yet to formulate a single test which can be employed to determine whether there is the requisite degree of State involvement ( see, Reitman v Mulkey, 387 U.S. 369, 378), and all the facts and circumstances of a particular case must be considered ( Burton v Wilmington Parking Auth., 365 U.S. 715, 722). It is clear, however, that the mere fact that a private entity contracts with the government ( see, e.g., Blum v Yaretsky, supra), is regulated by the government ( see, e.g., Jackson v Metropolitan Edison Co., 419 U.S. 345, supra), or performs a function also performed by the government ( see, e.g., Rendell-Baker v Kohn, 457 U.S. 830), is not enough by itself to treat it as a State actor. Rather, there must be some basis for finding that the State is "responsible" for the private conduct ( Blum v Yaretsky, 457 US, at p 1004, supra), either because it maintains such a close relationship with the private actor that it can be viewed as a joint participant in all decisions of the latter ( see, Burton v Wilmington Parking Auth., 365 U.S. 715, supra), because it allows the private actor to perform a function traditionally the exclusive prerogative of the State ( see, e.g., Evans v Newton, 382 U.S. 296), or because it requires or otherwise encourages the challenged conduct of the private actor ( see, e.g., Peterson v City of Greenville, 373 U.S. 244).
There are no facts or circumstances pointed to by defendants or otherwise apparent which could make the city responsible for the employment decisions of the plaintiffs or of city contractors generally. The Supreme Court's recent decision in Rendell-Baker v Kohn ( supra), virtually compels the conclusion that their conduct is not attributable to the city and thus cannot be said to violate the 14th Amendment. In Rendell-Baker, the entity in question was a privately operated high school in Massachusetts for maladjusted students. Virtually all of the school's students were referred to it by city school committees and the State, and pursuant to contracts with these governmental entities, the school received funding which paid for most of the costs of educating these students. In an action brought by a discharged employee against the school, the Supreme Court held that the school's personnel decisions were not State action, even though it received public funds, its business consisted almost exclusively of performing public contracts, and it performed a "public function," where the government did not influence or coerce those decisions.
Thus, Executive Order No. 50, in prohibiting discrimination by city contractors on the basis of "sexual orientation or affectional preference," is not prohibiting conduct covered by the 14th Amendment. The defendants contend, however, that even if the employment decisions of organizations contracting with the city are not State action, the city itself would be in violation of the 14th Amendment if it contracts with an entity which discriminates on the basis of "sexual orientation or affectional preference," and the Mayor, therefore, is fulfilling his duty to prevent this violation. This contention is superficially appealing, but cannot withstand closer analysis.
Neither this court nor the Supreme Court has ever held that the government may have no contacts with a private entity which discriminates or otherwise acts in a manner in which the government itself could not. Furthermore, while there is a distinction between seeking to hold a private actor responsible under the 14th Amendment for discriminatory conduct and seeking to enjoin governmental involvement with that actor ( Blum v Yaretsky, 457 US, at pp 1003-1004, supra; Note, State Action: Theories For Applying Constitutional Restrictions To Private Activity, 74 Colum L Rev 656, 698-699), the considerations of State action applicable to the former are also relevant to the latter ( Blum v Yaretsky, 457 US, at p 1004, supra).
Defendants rely heavily on the Supreme Court's decision in Norwood v Harrison ( 413 U.S. 455), in which the court enjoined the State of Mississippi from lending textbooks to private schools with racially discriminatory admissions policies. The court concluded that, although the textbook lending program had not been implemented in order to further racial segregation, as it applied to all private schools and had begun prior to the desegregation of the public schools, the State was granting "tangible financial aid [which] has a significant tendency to facilitate, reinforce, and support private discrimination" ( id., 413 US, at p 466).
There are several crucial distinctions between Norwood and this case. To begin, the Supreme Court found that the State's action in Norwood was effectively promoting the discrimination by the private actors ( see, Gilmore v City of Montgomery, 417 U.S. 556, 568-569). In contrast, there is no evidence that the city, by contracting for goods or services with a private organization, would be promoting any discriminatory acts by that organization ( cf. Novack, Rotunda Young, Constitutional Law, at 520 [2d ed]). Additionally, while the State in Norwood was gratuitously providing aid to the private entities, the city, in entering into contracts, is purchasing items it requires or fulfilling obligations it has, thus further negating any assertion that it is promoting the discriminatory acts.
Perhaps the most significant distinction between Norwood and this case is that the former involved governmental entanglement in racial discrimination. The Supreme Court has consistently recognized that the central purpose underlying the equal protection clause was to prevent governmental conduct discriminating on the basis of race, and that any such discrimination is subject to the most exacting scrutiny ( see, e.g., Palmore v Sidoti, 466 U.S. 429, 104 S Ct 1879, 1881-1882; Washington v Davis, 426 U.S. 229, 239). Consequently, it has become apparent that where racial discrimination by a private actor is involved, a lesser degree of State involvement than would otherwise be required will support a finding of "State action" ( see, Adickes v Kress Co., 398 U.S. 144, 190-191 [Brennan, J., concurring in part, dissenting in part]; Taylor v Consolidated Edison Co., 552 F.2d 39, 42, cert denied 434 U.S. 845; Note, State Action: Theories For Applying Constitutional Restrictions To Private Activity, 74 Colum L Rev 656, 657-658, 661). More generally, government has been permitted fewer contacts with private actors engaged in racial discrimination than with those otherwise acting in a manner which the government itself could not ( see, e.g., Granfield v Catholic Univ., 530 F.2d 1035, 1046, n 29, cert denied 429 U.S. 821; compare, e.g., title VI of the Civil Rights Act, 42 U.S.C. § 2000d [prohibiting racial discrimination in any activity or program receiving Federal financial assistance, without exception], with title IX of the Educational Amendments of 1972, 20 U.S.C. § 1681 et seq. [prohibiting sex discrimination in any educational program or activity receiving this assistance, but with several exemptions]; Norwood v Harrison, supra, with Board of Educ. v Allen, 392 U.S. 236).
Courts have uniformly refused to apply the same level of scrutiny applied to racial classifications in determining equal protection challenges to classifications based on sexual orientation ( see, e.g., Rich v Secretary of Army, 735 F.2d 1220, 1229; Hatheway v Secretary of Army, 641 F.2d 1376, 1382, cert denied 454 U.S. 864; DeSantis v Pacific Tel. Tel. Co., 608 F.2d, at p 332, supra). We need not decide now whether some level of "heightened scrutiny" would be applied to governmental discrimination based on sexual orientation ( see, Hatheway v Secretary of Army, 641 F.2d, at p 1382, supra; Note, An Argument for the Application of Equal Protection Heightened Scrutiny to Classifications Based on Homosexuality, 57 S Cal L Rev 797, 810-834; Note, Challenging Sexual Preference Discrimination in Private Employment, 41 Ohio St LJ 501, 513-514). Rather, we conclude only that the equal protection clause does not ordinarily prevent the city from contracting with private employers who discriminate on this basis, as the existence of the contract would not, by itself, make the city "responsible" for the private employment decisions so as to invoke constitutional protections ( see, Blum v Yaretsky, 457 US, at p 1004, supra). Thus, we reject defendants' contention that the prohibition in Executive Order No. 50 against discrimination by city contractors on the basis of "sexual orientation or affectional preference" is necessary to prevent the city from aiding or engaging in a violation of the 14th Amendment.
As we have found that the Mayor lacked any authority to promulgate the challenged portion of Executive Order No. 50, we hold that this portion was an unlawful usurpation of the legislative power of the City Council. Accordingly, the order of the Appellate Division should be modified by reinstating the orders and judgments at Special Term.
Judges JASEN, SIMONS, KAYE, ALEXANDER and TITONE concur with Chief Judge WACHTLER; Judge MEYER dissents and votes to affirm in a separate opinion.
Order modified, with costs to appellants, in accordance with the opinion herein and, as so modified, affirmed.
In concluding that the Mayor of New York City is not empowered by Constitution, Federal or State, or statute to bar those contracting with the city from discriminating in employment on a basis unrelated to bona fide occupational qualification, the majority ignores the difference between hiring quotas affirmatively imposed and a negative ban on arbitrary discrimination, and drastically extends this court's prior decisions concerning the Mayor's power with respect to city contracts ( Subcontractors Trade Assn. v Koch, 62 N.Y.2d 422; Matter of Fullilove v Beame, 48 N.Y.2d 376; Matter of Broidrick v Lindsay, 39 N.Y.2d 641). I, therefore, respectfully dissent.
The conclusion that neither Constitution authorizes the Mayor to limit contracts with the city to entities that do not engage in arbitrary discrimination turns on the concept that the programs contracted for do not involve "State action." There are a number of problems with that conclusion, however. First, plaintiffs' challenge is to the facial validity of Executive Order No. 50 insofar as it affects all city contractors. Such contracts cover a broad range of mandated and discretionary services; as to the present plaintiffs alone, from counseling to senior citizen centers to foster care and adoption services. Foster care institutions of the same type as are involved here have, in fact, been found to be engaged in "State action" subject to the requirements of the Federal equal protection clause ( Perez v Sugarman, 499 F.2d 761), and in light of the total control over a child's life that the city delegates to such institutions (as I have more fully outlined in Torres v Little Flower Children's Servs., 64 N.Y.2d 119, 130-132), the question whether their action is "State action" is not governed by the Supreme Court's decision in Rendell-Baker v Kohn ( 457 U.S. 830) regarding a private day school, which the majority deems controlling.
Second, whether a different standard of State action should apply under the equal protection clause of the State Constitution (art I, § 11) than the test applied under the 14th Amendment to the Federal Constitution is not as simple as footnote 6 in the majority opinion would make it appear. While we held in 1949 that the same standard would apply ( Dorsey v Stuyvesant Town Corp., 299 N.Y. 512, 530-531, cert denied 339 U.S. 981), we have not had occasion to consider the question since then and it should be reexamined in light of the court's decision in Sharrock v Dell Buick-Cadillac ( 45 N.Y.2d 152).
Matter of Esler v Walters ( 56 N.Y.2d 306), cited by the majority, dealt with the substantive scope of the protection against discrimination provided by the State Constitution, not with what constitutes State action.
We held in Sharrock that a lesser degree of State involvement was required to trigger the due process clause of the State Constitution (art I, § 6) than would be required under the 14th Amendment (45 N.Y.2d, at pp 159-161). That holding was based in part on the absence of any reference to State action in the text of the State constitutional provision ( id., at p 160). There is a similar absence of any explicit State action requirement in the State equal protection clause. Furthermore, because a long line of authority holds that the protection of a due process clause contains within it the requirement of equal protection ( Examining Bd. v Flores de Otero, 426 U.S. 572, 601; Weinberger v Wiesenfeld, 420 U.S. 636, 638, n 2; Frontiero v Richardson, 411 U.S. 677, 680, n 5; Shapiro v Thompson, 394 U.S. 618, 641-642; Schneider v Rusk, 377 U.S. 163, 168; Bolling v Sharpe, 347 U.S. 497, 499), it makes little sense to have differing standards for State action under the State equal protection clause and the State due process clause. Yet, by accepting plaintiffs' facial challenge to Executive Order No. 50, the court rejects any attempt to apply the State equal protection clause to particular city contracts.
Article I, § 11, provides that, "No person shall be denied the equal protection of the laws of this state or any subdivision thereof." Similarly, article I, § 6, states that, "No person shall be deprived of life, liberty or property without due process of law." In contrast, the 14th Amendment is explicitly phrased in terms of State action: "nor shall any State deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
If, however, it be accepted that neither constitutional provision is controlling, there remains the question whether the Mayor can adopt the policy that the city not contract with those who refuse to agree that they will not discriminate arbitrarily in employment decisions. As the court below makes clear, there can be no question that across-the-board discrimination against homosexuals, unrelated to any bona fide qualification for a particular position, is invidious and irrational. Nor is there any question that Executive Order No. 50 permits a contractor to discriminate as to any of the prohibited categories (race, creed, color, national origin, sex, age, handicap, marital status, sexual orientation or affectional preference) if it can be shown to be legitimately related to the requirement of a particular job. Thus, Executive Order No. 50, by barring discrimination against candidates meriting employment for reasons irrational because unrelated to qualification for employment, does no more than enforce merit selection.
In Matter of Broidrick v Lindsay ( 39 N.Y.2d 641, supra), we explicitly recognized the Mayor's right to require selection on the basis of merit. There we struck down an Executive Order mandating affirmative action but were careful to note that, "Insofar as programs do not mandate percentage employment formulas, but only would enlarge the pool of persons eligible for employment based on discrimination-free merit selection, they are permissible under existing law" ( id., at p 649). Yet, the majority now rejects that view and reaches the remarkable conclusion that the Mayor has no power to require city contractors to make employment decisions on the basis of merit and fitness for the job. In other words, the Mayor cannot, by removing barriers to employment unrelated to qualification or merit, ensure that the city obtains the best possible services for the money it spends, because that policy has not been authorized or endorsed by appropriate legislation.
In fact, the Mayor "is empowered to enter into contracts * * * and to determine the manner of transacting the city's business and affairs" ( Matter of Bauch v City of New York, 21 N.Y.2d 599, 605). In exercising that power, the Mayor's obligation is to ensure that the city receive the greatest value for the lowest possible cost ( see, e.g., Matter of Dairymen's League Coop. Assn. v Murtagh, 274 App. Div. 591, 594-595, affd 299 N.Y. 634). Thus, in Matter of Broidrick v Lindsay ( 39 N.Y.2d 641, 648, supra), the court held that "cost minimization is a proper consideration in setting government procurement policy," thereby explicitly recognizing the validity of the social policy embodied in Executive Order No. 50.
The majority holds, however, that notwithstanding the recognition in Matter of Broidrick v Lindsay ( supra), and Matter of Fullilove v Beame ( 48 N.Y.2d 376, 379, supra) of the Mayor's power to require discrimination-free merit selection, he is permitted to ban particular kinds of discrimination by city contractors only if the State Legislature or City Council has either itself already done so or expressly authorized him to do so. But one searches in vain for any language in these cases, or in the other cases cited by the majority, that limits the Mayor's power in this manner. Rapp v Carey ( 44 N.Y.2d 157) invalidated an Executive Order issued by the Governor because it was not only unauthorized by any statute or constitutional provision, but was actually inconsistent with existing legislation ( id., at pp 164-165). And the defect in the Executive Order in Subcontractors Trade Assn. v Koch ( 62 N.Y.2d 422, 429, supra) was that it imposed an affirmative, remedial plan which required that "a certain percentage of city construction contracts * * * be allotted to a particular group or category of business enterprise". Here, no affirmative action is mandated. There is only a ban on arbitrary discrimination, designed to implement the accepted social policy that the city should seek to get the most for its money.
Finally, in light of the majority's reliance on separation of powers cases involving the Federal Constitution, it should be noted that a number of Federal courts have upheld presidential Executive Orders barring discrimination in Federally funded projects on the ground that "the federal government has a vital interest in assuring that the largest possible pool of qualified manpower be available for the accomplishment of its projects" ( Contractors Assn. v Secretary of Labor, 442 F.2d 159, 171, cert denied 404 U.S. 854; accord, United States v New Orleans Public Serv., 553 F.2d 459, 465, vacated on other grounds 436 U.S. 942, adhered to 638 F.2d 899, cert denied 454 U.S. 892; Farkas v Texas Instrument, 375 F.2d 629, 632, n 1). Those decisions were favorably commented on in Matter of Broidrick v Lindsay ( 39 N.Y.2d 641, 647-648, supra), although they were distinguished on the ground that the Executive Order there in issue applied to the private projects of city contractors as well as their city-funded work and, thus, was intended to promote a social policy far beyond cost minimization in the expenditure of public funds. In the present case, Executive Order No. 50 applies only to contracts that are funded in whole or in part by government moneys appropriated or controlled by the city. Accordingly, it is carefully tailored to the policy of obtaining the best possible work effort from city contractors through a ban on arbitrary employment discrimination and is permissible under the prior decisions of this court. By reversing in this case, the majority adopts a new separation of powers principle that is inconsistent with both its own prior decisions and Federal case law.
Despite claims by some of the plaintiffs that the Executive Order and its implementing regulations apply to all work, public or private, by city contractors, the scope of the coverage is explained by the following statement from the Director of the City Bureau of Labor Services: "It is true that section 50.20(A) of the Regulations makes the non-discrimination requirement applicable to `[a]ll contractors doing business with the City without regard to the dollar amount or source of funding.' However, the phrase `without regard to the dollar amount or source of funding' was inserted not to expand the non-discrimination requirement so as to cover programs wholly unrelated to City contract work but rather to clarify that the non-discrimination requirement is fully applicable to programs that the City funds only in part as well as to programs that the City contracts for but does not fund ( e.g., City contracts using federal funds). The reference in section 50.20(B) to `[c]ontractors whose contracts are funded in whole or in part by federal or state funds' likewise refers to contracts administered by and formally let by the City."