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NOW v. WATERFRONT COMMN. OF NEW YORK HARBOR

March 23, 1979

The NATIONAL ORGANIZATION FOR WOMEN, NEW YORK CHAPTER et al., Plaintiffs,
v.
WATERFRONT COMMISSION OF NEW YORK HARBOR and Leonard Newman, Defendants



The opinion of the court was delivered by: KNAPP

MEMORANDUM AND ORDER

This motion to dismiss raises the question of whether the licensing activities of the defendant Waterfront Commission of New York Harbor ("the Commission") come within the terms of Title VII of the Civil Rights Act of 1964, as amended in 1972, 42 U.S.C. § 2000e et seq. ("the Act"). Plaintiffs the National Organization for Women and various individual women claim that the Commission discriminated on the basis of gender in confining the acceptance of applications for cargo checker jobs to registered longshoremen, a group that has historically been predominantly, if not exclusively, male. *fn1" Plaintiffs originally brought this action only under the Civil Rights Acts of 1866 and 1871, 42 U.S.C. §§ 1981, 1983. They have since, however, amended their complaint to add the Title VII claim that is the focus of the instant motion. In this motion, the Commission contends that in its capacity as an inter-state licensing agency, created with the consent of Congress, it is neither an "employer" nor an "employment agency" under the terms of the Act and that its licensing activities cannot, therefore, form the basis of a Title VII claim. We agree and grant defendants' motion to dismiss the Title VII cause of action.

The principle facts relating to plaintiffs' claims are set forth in our previous opinion, (D.C.) 460 F. Supp. 84, in which we granted in part and denied in part defendants' motion for summary judgment and denied an application by plaintiffs for preliminary injunctive relief. *fn2" Those facts need not, therefore, be rehearsed here. Some discussion of the Commission's history and activities is, however, in order.

 The Commission was created in 1953 by acts of the state legislatures of New York (N.Y.Laws 1953, cc. 882, 883, McK.Unconsol.Laws § 9801 Et seq.) and New Jersey (N.J.Laws 1953, cc. 202, 203, N.J.S.A. 32:23-1 Et seq.), with the consent of Congress to their inter-state compact (P.L. 252, c. 407, 67 Stat. 541, 83d Cong., 1st Sess.). During the years preceding the enactment of the Compact, criminal activities on the waterfront had been the subject of various investigations, including inquiries by the New York State Crime Commission, the New Jersey Law Enforcement Council, a Hudson County New Jersey Grand Jury, and a sub-committee of the United States Senate Committee on the Judiciary. The findings of the Senate sub-committee, which concluded that "New York has America's toughest and foulest waterfront," are perhaps typical (Senate Rpt. No. 653):

 
"(b) Criminal exploitation and extortion. Criminal elements and criminal activities are firmly entrenched on the waterfront primarily through their grip on the organized labor movement. For many years it has been generally accepted that the place for an ex-convict to find employment is around the docks. This, standing alone, would not be objectionable; no doubt many men who have paid their debt to society have been able to make a new start in such employment. But in this instance the scales have tipped the other way: the waterfront is not where a man can "go straight' it is where he can keep crooked. Criminals whose long records belie any suggestion that they can be reformed have been monopolizing controlling positions in the International Longshoremen's Association and in local unions. Under their regimes gambling, the narcotics traffic, loansharking, shortganging, payroll "phantoms', the "shakedown' in all its forms and the brutal ultimate of murder have flourished, often virtually unchecked." (p. 7)

 To loosen the "stranglehold on port activities" "that criminals, racketeers and hoodlums had acquired" (Hazelton v. Murray (1956) 21 N.J. 115, 121 A.2d 1, 4 (Brennan, J.)), the Commission was empowered under the Compact to register longshoremen and cargo checkers and to license stevedores, pier superintendents, hiring agents, and port watchmen as prerequisites to their work on the waterfront. Under the Compact, the Commission is given the power to deny registration to any person who has been convicted of serious crimes or who otherwise lacks "good character and integrity" (in the case of checkers, McK.Unconsol.Laws § 9918(3)(a)) or whose presence constitutes a "danger to the public peace or safety" (in the case of longshoremen, McK.Unconsol.Laws § 9829(c)). As recognized by the courts and in the Compact itself, these regulations were enacted in the exercise of the states' police power. McK.Unconsol.Laws § 9805; Linehan v. Waterfront Commission of New York Harbor (S.D.N.Y.1953) 116 F. Supp. 683 (three-judge court, opinion by A. Hand, J.), Aff'd without majority opinion (1954) 347 U.S. 439, 74 S. Ct. 623, 98 L. Ed. 826; Hazelton, supra and cases cited therein.

 In addition to its licensing and registration functions, the Commission also controls the size of the registers for longshoremen and checkers. Such registers were originally open to all applicants who met the criteria above outlined. In response to the advent of containerization, however, the registers were closed in 1966 by the enactment of Section 5-p of the Waterfront Commission Act. That section vests in the Commission the power to accept or suspend applications after evaluating the desirability of an increase in the size of the waterfront work force. If the Commission determines that a register should be opened, it publicizes its decision by issuing press releases. There is no claim that it otherwise solicits applications.

 Although all hiring is conducted at "employment information centers" established and maintained by the Commission, McK.Unconsol.Laws § 9853, the Commission exercises no control over individual hiring decisions. Instead, such decisions, under the Compact, are to be made by "hiring agents" licensed by the Commission and employed by stevedores or carriers, McK.Unconsol.Laws §§ 9806, 9905(9), under methods to be determined by longshoremen and their employers through collective bargaining. McK.Unconsol.Laws § 9869. We are advised by the Commission that it has used its authority over hiring agents to deny licenses to any who discriminated in employment on grounds of color, race, creed or sex. Plaintiffs take the position that these activities, taken together, render the Commission either an "employer" or an "employment agency" under the terms of Title VII. We disagree.

 Discussion

 The provisions of Title VII upon which plaintiffs rely, insofar as here relevant, are as follows (42 U.S.C. § 2000e):

 
"(b) The term "employer' means a person engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year, and any agent of such a person . . .
 
(c) The term "employment agency' means any person regularly undertaking with or without compensation to procure employees for an employer or to procure for employees opportunities to work for an employer and includes an agent of such a person."

 When Title VII was originally enacted, state governments and their subdivisions were exempted from the foregoing provisions. However, in 1972 this exemption was removed by the deletion of language that excluded "a State or political subdivision thereof" from the definition of "employer" and that excluded agencies of states and their subdivisions from the definition of "employment agency". *fn3"

 A simple reading of the above definitions suffices to demonstrate that they are not intended to apply to the kind of licensing activity in which the Commission engages. In its licensing role, the Commission neither pays the wages nor engages the services of persons it registers. Nor does it undertake to obtain workers for employers or jobs for workers. It is, therefore, ...


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