The opinion of the court was delivered by: GOETTEL
This is an action by Carol Reynolds against the New York State Department of Corrections and the New York State Department of Civil Service. She alleges that, for approximately eight months in 1976, the defendants discriminated against her on the basis of her sex and thus violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. Before this Court is the defendants' motion to dismiss on the ground of res judicata.
The facts relevant to this motion are not in dispute. In 1976, the plaintiff filed complaints against the state defendants with the Equal Employment Opportunity Commision (EEOC) and the New York State Division of Human Rights (NYSDHR). See 42 U.S.C. § 2000e-5(c) (1976).
She claimed that the defendants discriminated against her on the basis of her sex by reason of their policy of placing female correction officers only at Before Hills, the sole facility for the incarceration of women in the state corrections system. The NYSDHR, however, found no probable cause to believe that the state defendants had engaged in the unlawful discriminatory practice complained of by the plaintiff. The plaintiff appealed to the State Human Rights Appeal Board, which affirmed the decision as "not arbitrary, capricious or an abuse of discretion." Affidavit of William Mohr, Exhibit B (Order of State Human Rights Appeal Board). She then sought review by the New York State Appellate Division, which apprarently found that sex was a bona fide occupational qualification (BFOQ) for the position of correction officer and affirmed the determination of the Appeal Board. Reynolds v. Kramarsky, 64 A.D.2d 636, 407 N.Y.S.2d 443 (2d Dep't 1978).
Following the decision by the Appellate Division, the EEOC considered the plaintiff's claims. On April 29, 1982, it concluded that "reasonble cause exists to believe that [the state defendants] violated Title VII by denying [the plaintiff] a job as a Correction Officer between March 10, 1976 and November 15, 1976 because of her sex," and invited the parties to embark on the conciliation process. Complaint, Exhibit IV at 4 (EEOC Determination). When conciliation efforts proved unsuccessful, however, the EEOC notified the plaintiff of her right to sue in federal court. Accordingly, she commenced this action on January 25, 1983.
The sole issue raised by the defendants' motion is whether Kremer v. Chemical Construction Corp., 456 U.S. 461, 72 L. Ed. 2d 262, 102 S. Ct. 1883 (1982), compels the dismissal of this action. In that case, the plaintiff, Kremer, claimed that his former employer's decision not to rehire him constituted unlawful discrimination. Accordingly, he filed a complaint with the EEOC, which deferred to the NYSDHR. See 42 U.S.C. § 2000e-5(c) (1976). After an investigation, the NYSDHR rejected the plaintiff's claim, concluding "that Kremer was not rehired because one employee who has rehired had greater seniority, that another employee who was rehired filled a lesser position than that previously held by Kremer, and that neither Kremer's creed nor age was a factor considered in [the] failure to rehire him." Kremer, supra, 456 U.S. at 464. This determination was upheld by the State Human Rights Appeal Board and by the New York State Appellate Division.
After the Appellate Division's decision, the EEOC issued a right to sue notice,
and Kremer brought suit in federal court under Title VII. The merits of this case were never reached, however, because his complaint was dismissed on the ground of res judicata.
The Supreme Court upheld the dismissal of Kremer's Title VII action. It noted that
[i]n our system of jurisprudence the usual rule is that merits of a legal claim once decided in a court of competent jurisdiction are not subject to redetermination in another forum. Such a fundamental departure from traditional rules of preclusion, enacted into federal law [in the full faith and credit statute], can be justified only if plainly stated by Congress. Because there is no "affirmative showing" of a "clear and manifest" legislative purpose in Title VII to deny res judicata or collateral estoppel effect to a state court judgment affirming that a claim of employment discrimination is unproved, and because the procedures provided in New York for the determination of such claims offer a full and fair opportunity to litigate the merits, [the decision of the Appellate Division bars a Title VII action based on the same facts.]
Id. at 485 (footnote omitted).
The defendants argue that Kremer requires the Court to dismiss this action.The plaintiff, on the other hand, argues that the New York action was dismissed because, under New York law, sex is a BFOQ for the position of correction officer in an all male correctional facility, that the BFOQ exception in New York law is broader than its federal analog, and that, therefore, the holding and rationale of Kremer are inapplicable to this case. This Court agrees with the plaintiff that Kremer does not require dismissal on the ground of res judicata.
The first question is whether the BFOQ exception in the New York Human Rights Law is broader than its federal analog. Section 703(e) of Title VII, 42 U.S.C. § 2000e-2(e) (1976), provides that
[n]otwithstanding any other provision of this subchapter, . . . it shall not be an unlawful employment practice for an employer to hire and employ employees . . . on the basis of . . . sex . . . in those certain instances where . . . sex . . . is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise.
This is, however, "an extremely narrow exception to the general prohibition of discrimination on the basis of sex." Dothard v. Rawlinson, 433 U.S. 321, 334, 53 L. Ed. 2d 786, 97 S. Ct. 2720 (1977) (footnote omitted). To justify discrimination on these grounds, an employer cannot rely on "stereotyped characterizations of the sexes." Id. at 333 (footnote omitted). Rather, it must show that there is a factual basis for concluding that "the essence of the business operation would be undermined by not hiring members of one sex exclusively." Diaz v. Pan American World Airways, Inc., 442 F.2d 385, 388 (5th Cir.), cert. denied, 404 U.S. 950, 30 L. Ed. 2d 267, 92 S. Ct. 275 (1971). Stated another way, the employer must show that there is "a factual basis for believing . . . that all or substantially all [members of the other sex] would be unable to perform safely and efficiently the duties of the job involved." Weeks v. Southern Bell Telephone & Telegraph Co., 408 F.2d 228, 235 (5th Cir. 1969).
In the context of hiring correction officers, only the most unusual circumstances will justify the hiring of members of one sex exclusively. In Dothard v. Rawlinson, supra, for example, the Supreme Court upheld Alabama's policy of using only male guards as corrections officers in "contact" positions in male maximum security penitentiaries, but carefully limited its decision to the particular facts of the case, that is, the "peculiarly inhospitable" environment of the Alabama penitentiaries characterized by "rampant violence" ...