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December 15, 1966

Allegheny Airlines, Inc., et al., Plaintiffs,
George H. Fowler, et al., Members of the New York State Commission for Human Rights, Defendants

Bryan, D.J.

The opinion of the court was delivered by: BRYAN


In this action the twelve Airline plaintiffs seek judgment against defendant members of the New York State Commission for Human Rights, pursuant to 28 U.S.C. § 2201, declaring that the Commission is without jurisdiction to apply the age discrimination provisions of Article 15 of the New York Law Against Discrimination to plaintiffs' stewardesses engaged in flights in interstate and foreign air transportation. Federal question jurisdiction is asserted under 28 U.S.C. §§ 1331(a) and 1337.

 Defendant Commissioners have moved to dismiss the complaint for lack of jurisdiction over the subject matter and failure to state a claim upon which relief can be granted. Rule 12(b)(1), (6), F.R.C.P. A motion by plaintiffs for leave to serve a supplemental complaint alleging events which had transpired subsequent to the commencement of the action, pursuant to Rule 15(d), F.R.C.P., came on for hearing at the same time. Plaintiffs' motion was granted and defendants' motion to dismiss was considered as addressed to the supplemental complaint.

 Since the defendants have submitted an affidavit in support of their motion to dismiss which goes into relevant facts concerning the administrative proceedings under attack in somewhat more detail than the allegations of the supplemental complaint, defendants' motion will be treated as one for summary judgment under Rule 56. See Rule 12(b), F.R.C.P.


 The allegations of the supplemental complaint, containing three separately-stated claims for relief, with such additional factual details as are supplied by the moving affidavit, are in substance as follows:

 Plaintiff Mohawk is a New York corporation. Each of the other plaintiffs is a foreign corporation qualified to do business in New York. All are currently operating as common carriers by air engaged in interstate air transportation pursuant to certificates of convenience and necessity issued by the Civil Aeronautics Board and subject to the provisions of the Federal Aviation Act of 1958, 49 U.S.C. §§ 1301-1542, and the regulations issued thereunder. 14 C.F.R. chs. I and II. Eight are also certified to operate as scheduled air carriers in foreign transportation under the Act and the Regulations. All are subject to the provisions of the Railway Labor Act with respect to collective bargaining with their employees.

 Under the authority of 14 C.F.R. §§ 121.391 and 121.393 plaintiffs are required to employ flight attendants or stewardesses to provide for the comfort, safety and convenience of their passengers on air craft operated pursuant to their certificates. Each has determined, in accordance with the needs and conditions of its service, the functions, duties and necessary qualifications and training of its flight stewardesses. Each has also determined that such functions are best performed "by employees having the personal and personality characteristics of youthful, attractive women," and that youth is an occupational qualification for flight stewardesses in interstate and foreign air transportation.

 Every one of the plaintiffs therefore has established a maximum hiring age between 25 and 27 for initial stewardess employment; six of them have established maximum age limits ranging from 32 to 35 for continuance of service in that capacity. Most stewardesses, however, resign within two or three years after they are hired.

 Each of the plaintiffs provides airline service to points within the State of New York from points outside the State, and to points outside the State from points within. Consequently every plaintiff employs stewardesses who perform services within the State. These stewardesses are assigned to particular bases from which their trips regularly originate and return. Six of the plaintiffs have stewardess bases in New York and other bases outside of the State. The remaining plaintiffs maintain bases only outside of New York from which their stewardesses enter the State to perform service in interstate or foreign flights.

 Stewardesses are not hired for assignment to particular bases, but are assigned to such bases within the respective systems as may be appropriate. None are hired for assignment only to bases within New York or are employed to perform services only in New York. All are hired to perform services in interstate or foreign air transportation in accordance with the needs of the particular service.

 Most stewardesses are initially hired outside of New York and the majority of those assigned to New York bases perform most of their services outside New York. Transfer and assignment is governed by the collective bargaining agreements negotiated by each plaintiff with the union certified as exclusive bargaining representative under the Railway Labor Act.

 As to each plaintiff the union so certified represents all of the stewardesses on a systemwide basis without regard to where they are based or where their services are rendered. Age requirements for stewardesses are uniform throughout each system. Assignments to bases inside or outside of New York are frequently shifted as the needs of service are required.

 Age qualifications have been the subject of negotiation with the respective stewardesses' unions and the practices adopted by the airlines, according to the allegations of the complaint, are "consistent with the various agreements" between the plaintiffs and the respective certified unions. American and TWA currently have systemwide agreements with their stewardesses' representative, Local 550 of the Transport Workers Union, which contemplate the reassignment of stewardesses to other employment at the ages of 32 and 35 respectively.

 There are laws against age discrimination in employment in twenty states serviced by plaintiffs, with a range of different protected ages. The New York Law Against Discrimination (Article 15 of the Executive Law) has two provisions dealing with age discrimination in employment. Section 296 (1)(a) generally bars discrimination "because of the age * * * of any individual." *fn1" Section 296(3-a) (a) provides that it is an unlawful practice for an employer to refuse to hire, to discharge or to discriminate in any terms of employment "because an individual is between the ages of forty and sixty-five." *fn2" Neither provision has been construed by the New York courts.

 Article 15 created the State Commission Against Discrimination (now the State Commission for Human Rights) and vested it with broad powers to prevent, combat and eliminate the various discriminatory practices specified, including age discrimination. The Commission may pass upon complaints *fn3" and also institute investigations on its own motion. *fn4" A full panoply of enforcement procedures is provided. *fn5"

 Complaint procedure under the Act is spelled out in § 297. There are essentially five stages in the processing of a complaint: (1) upon the filing of a verified complaint, the chairman designates a single commissioner to conduct an investigation and determine whether "there is probable cause to credit the allegations of the complaint;" (2) if probable cause is found, the investigating commissioner may then seek to eliminate the discriminatory practice by "conference, conciliation and persuasion;" (3) if the issues are not so resolved, the investigating commissioner may proceed to require the respondent to "answer the charges of such complaint" at a full, formal hearing before three members of the Commission, not including the original investigating commissioner; (4) if, upon the evidence at the hearing, the commission finds that a respondent has engaged in any unlawful discriminatory practices, the Commission shall state its findings and issue a cease and desist order containing appropriate conditions; if no violation is found the complaint must be dismissed; (5) in the event of continued non-compliance the Commission may apply to the Supreme Court for an order directing enforcement. *fn6" Any person aggrieved may obtain judicial review of orders of the Commission. Wilful violation of a Commission order is a misdemeanor but obviously seeking judicial review is not such wilful conduct. *fn7"

 Apparently the criminal provisions of the statute have never been invoked. In the twenty-one years since the statute was passed, the Commission has always proceeded by judicial enforcement of its orders.

 On December 17, 1964, the Commission on its own motion, pursuant to § 295(6)(b) of the Executive Law, commenced an investigation of the airline industry with respect to maximum age requirements for initial and continued employment as a stewardess. The announced purpose of the investigation was to determine "whether a bona fide occupational qualification properly applies to a stewardess position of either particular airlines or the airlines generally under the age provisions of the New York Law Against Discrimination." Defendant Conway was designated investigating commissioner.

 Twenty airlines flying into New York, the Air Transport Association and the two major stewardess unions were subsequently invited by Commissioner Conway to participate in an "informational hearing" on December 7, 1965 and to present evidence on the matters under investigation. At the hearing counsel representing several of the airlines and the Air Transport Association raised objections to the jurisdiction of the Commissioner to conduct any investigation on the grounds (1) that application of the New York law amounted to an unconstitutional burden on interstate commerce; (2) that it constituted an attempt to regulate a field preempted by the Railway Labor Act; and (3) that the investigation was not authorized by Article 15 since it did not involve persons between the ages of 40 and 65 who were the only persons covered by the Act.

 Commissioner Conway apparently took the position that the objections to jurisdiction could not be considered at such an early stage since the hearing was not part of an enforcement proceeding and those invited were under no compulsion to attend or participate. After considerable discussion of adjournment to permit the airlines to seek relief in the courts and the rejection by them of a suggestion that they suspend removal of stewardesses from flight for overage during such adjournments, Commissioner Conway proceeded to take the testimony of the stewardess representatives. The airlines declined to present any evidence or to participate in the hearings pending a judicial challenge on the jurisdictional question.

 On March 23, 1966, when suit had not yet been commenced, Commissioner Conway issued a "Report of Findings after Investigation" which concluded generally that age was not a bona fide occupational qualification for continued employment as a stewardess. *fn8"

 The report did not pass upon or deal with the jurisdictional objections of the airlines. No evidence in support of the airlines' position with regard to age qualifications was submitted to or considered by the Commissioner in making his report.

 In addition to the investigation upon its own motion the Commission has entertained four complaints by stewardesses alleging discrimination because of age, two against American and two against TWA. Subsequent to Commissioner Conway's report of March 23, 1966, the two investigating Commissioners assigned to conduct the first stage of these complaint proceedings made findings of probable cause to credit the allegations of the complainants that American and TWA had violated their rights under the New York Law ...

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