York's employment law are inconsistent with the Bank's Charter, apart from § 341(5). For instance, the Bank points to the differences between New York Labor Law § 201-d(2)(a) on employee political activities and the Bank's internal policy which follows the federal Hatch Act, the different ages at which age discrimination begins under the New York State Human Rights Law and under Title VII, and other state employment laws that impact the Bank's status as an at-will employer beyond the prohibition against race discrimination.
None of these purported conflicts is relevant to the case at hand, nor do they affect the earlier determination that Congress did not intend 12 U.S.C. § 341(5) to preempt state anti-discrimination laws that are consistent with federal anti-discrimination legislation.
The Bank's Brief (at p. 4) indicates that it is troubled by a statement in the earlier Opinion that "the New York State Human Rights Law, with provisions analogous to Title VII, creates no additional employment rights in conflict with the Bank's status as an employer at will." The quoted sentence may have overstated the situation and, if so, is now modified to specify that the particular provision of state law at issue in this case -- the New York State Human Rights Law with regard to race discrimination in employment -- does not impose additional burdens on the Bank beyond the legal constraints of Title VII.
The final point raised by the Bank in the instant motion is not new. It reargues the Bank's position that deference should be paid to the New York State Division of Human Rights, which had decided that it had no jurisdiction over the Bank because the Bank is a "corporate instrumentality of the United States." This position appears to be directly contrary to a determination made by the Appellate Division, Fourth Department, that the Red Cross -- likewise a "federal instrumentality" -- was nevertheless subject to "New York's exercise of its police powers under the Human Rights Law." Greater Buffalo Chapter, American Red Cross v. State Division of Human Rights, 118 A.D.2d 288, 504 N.Y.S.2d 882, 885 (4th Dept. 1986).
The Bank also cites a recently-decided Fourth Circuit opinion not referred to on the Bank's original motion, Andrews v. Federal Home Loan Bank of Atlanta, 998 F.2d 214 (4th Cir. 1993). Andrews held that a similar provision of the Federal Home Loan Bank's Charter granting the Bank discretion to dismiss employees "at pleasure" preempted state laws governing wrongful termination.
Andrews is not a case of employment discrimination based on race, nor is it controlling. The plaintiff in Andrews alleged that he was fired for criticizing a change in the Federal Home Loan Bank's policy. The Fourth Circuit held that state-created contract rights in employment directly conflicted with the "at pleasure" provision and the Federal Home Loan Bank's status as an employer at will. Andrews did not address the preemptive effect, if any, of the "at pleasure" provision on state anti-discrimination laws.
To support its motion to reargue, the Bank has submitted a policy statement of the Equal Employment Opportunity Commission ("EEOC"), dated October 20, 1993. The EEOC policy statement discusses the Commission's position that the Federal Reserve Banks are private employers covered by the private sector provisions of the Age Discrimination in Employment Act, Title VII, the Equal Pay Act and the Americans with Disabilities Act. The Bank highlighted a paragraph of the statement describing United States v. Hollingshead, 672 F.2d 751 (9th Cir. 1982), a case holding that an employee of a Federal Reserve Bank was a "public official" within the meaning of the Federal Bribery Statute.
The EEOC statement neither addresses nor supports the Bank's contention that § 341 of its Charter preempts state anti-discrimination laws. It merely clarifies the Commission's position that Federal Reserve Banks are subject to federal employment discrimination laws as private employers. The EEOC statement does not call into question our earlier finding.
* * *
Defendant's motion to reargue is denied.
It is so ordered.
Dated: New York, New York
November 17, 1993
Morris E. Lasker