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The New York Court of Appeals Monday opened the door to a sexual orientation discrimination action where lesbian couples were denied student housing offered to married students. The court held that the claim, dismissed by a trial court, is potentially actionable under a New York City human rights law prohibiting policies with a disparate impact. It also found that the lower courts applied the wrong standard in analyzing disparate impact by holding that the law applied equally to all unmarried students — without recognizing that gay couples cannot marry. The case, Levin v. Yeshiva University, 76, presented the court with a cutting-edge question of vital importance nationally to advocates not only for homosexuals, but other protected groups as well. It resulted in an extremely rare situation where three different judges wrote opinions: All seven judges agreed in an opinion by Judge Carmen Beauchamp Ciparick that there is a possible claim under sexual orientation; Judge George Bundy Smith concurred with the result but for different reasons; and Chief Judge Judith S. Kaye would have allowed the plaintiffs to pursue a claim under a state law protecting marital status as well as city law addressing sexual orientation. The bottom line is that lesbian medical students at Albert Einstein College of Medicine at Yeshiva University will have an opportunity to demonstrate that the school’s policy of offering housing to married but not unmarried couples disproportionately burdens homosexuals. And if so, the school will have to justify the policy as bearing a “significant relationship to a significant business objective.” The impact of the decision will be felt only where there is a local law banning discrimination on sexual orientation, such as New York City, since there is no statewide prohibition. However, observers said the decision from New York’s widely respected high court could have influence in the 11 states and more than 100 municipalities outside of New York State that have such a statute. Levin v. Yeshiva University stems from an effort by lesbian medical students to obtain housing for themselves and their domestic partners in university apartments reserved for married couples. Sara Levin and Maggie Jones were both medical students at the Albert Einstein College of Medicine of Yeshiva University when they sought university housing for themselves and their respective same-sex partners. When they were turned down because they could not produce the required marriage certificate, the women filed a lawsuit accusing the university of violating the New York Human Rights Law, the New York City Human Rights Law and the New York Roommate Law. Supreme Court Justice Franklin Weissberg of New York County dismissed the complaint on March 29, 1999, for failure to state a cause of action (180 Misc2d 829). Justice Weissberg held that Yeshiva’s policy was nothing more than a recognition of the marital institution and that it treated all married students equally and all unmarried students equally. The Appellate Division, First Department, unanimously affirmed (272 AD2d 158) with a finding that the policy has the same impact on non-married gay students as on non-married heterosexual students. Additionally, the First Department found no violation of the state Roommate Law, which applies solely to premises occupied as a primary residence. In Monday’s decision, the New York Court of Appeals resurrected a large part of the claim, primarily through a finding that the trial judge and First Department conducted an inappropriate evaluation. MAIN OPINION Judge Ciparick, in the main opinion, observed that the New York State law prohibits overt discrimination, while the City Human Rights statute goes a step further to protect against facially neutral policies that have an unjustified disparate impact. After finding that the Yeshiva policy was not facially discriminatory under state law or the Court’s rulings applying that law, the analysis turned to determining whether or not an impact is disparate, and therefore prohibited by the city code. Central to that analysis was the U.S. Supreme Court’s 1971 decision in Griggs v. Duke Power Co., 401 US 424. In Griggs, black employees of a utility company accused the firm of violating Title VII of the Civil Rights Act of 1964 by requiring all applications for certain jobs to either have a high school diploma or pass a standardized test. The policy did not target African-Americans. But the Supreme Court, reversing lower courts, said a prima facia case of disparate impact was established through the demonstration that the policy affected significantly more blacks than whites. In Levin, Judge Ciparick said the Appellate Division decision ran contrary to the principle articulated in Griggs. She said the First Department’s exclusion of married students from its disparate impact analysis rendered the procedure articulated in Griggs meaningless. “To illustrate, the result in Griggs would have been entirely different had the plaintiffs been prevented from analyzing the racial composition of those actually offered employment under the company’s hiring policy requiring successful test completion and/or a high school diploma,” Judge Ciparick wrote. “As a result, just as in the Appellate Division’s ruling here, the only comparison would have been between those African-American and white persons without high school diplomas or passing test scores. “And, since 100 percent of both classes were not the recipients of favorable treatment, no disparate impact would have been established, thereby frustrating Congressional policy as applied to that case,” he concluded. CONCURRING OPINION In his separate concurrence, Judge Smith endorsed the result, but disagreed with the Court’s application of Griggs and did not join the disparate impact portion of the ruling. “In order to apply Griggs v. Duke Power Co. to the facts here, this court must conclude that the traditional practice of private universities of granting housing preferences to married couples is unlawful discrimination, as well as being unlawful in its discriminatory impact,” Judge Smith wrote. “I am unable to draw that conclusion, particularly when marriage is a fundamental constitutional right … and the state has sought to recognize and support marriage as a positive institution.” Chief Judge Kaye, writing separately, would have allowed a claim under New York State Human Rights Law as well. She said the plaintiffs here were “denied partner housing merely because they were unmarried,” and noted that Human Rights Law prohibits discrimination based on whether a person is single, married, divorced or separated. “That is exactly what happened here,” Chief Judge Kaye argued. At oral argument, the Court of Appeals judges seemed uneasy with opening a Pandora’s Box and repeatedly asked counsel to forecast the implications of a ruling in favor of the plaintiffs. They raised questions about the impact such a ruling could potentially have on wrongful death actions, estate law, suits over employee benefits and other types of housing disputes. They also pondered whether a ruling against the university would require the court to parse the definitions of “partnership” and “relationship.” The court has to some extent entered that arena in the past. In Braschi v. Stahl Associates, 74 NY2d 201, 1989, the court found that when the term “family” is used in a statute without definition, it may include same-sex couples and others not related by marriage, blood or adoption. None of those issues arose in Monday’s opinion. James D. Esseks, counsel for the plaintiffs, said the court’s finding that a disparate impact analysis must include a comparison of non-married versus married students is a monumental victory. “We have been trying for a long time to get courts to recognize this,” said Esseks, who was a partner at Vladeck, Waldman, Elias & Engelhard in Manhattan when the case was argued, and is about to become litigation director of the Lesbian and Gay Rights and AIDS Project with the American Civil Liberties Union. “This is the first time a high level court has said, ‘You are right, this is the proper analysis.’ “ Esseks said that the implications are “that any employer, landlord or other entity that conditions benefits on marriage has got to be careful because it very well may be that the condition is discriminatory.” He said he was somewhat surprised by the fact that the entire court concurred with the result, since “coming out of oral argument I didn’t think we would get seven people to agree on anything.” Mark A. Jacoby of Weil Gotshal & Manges, counsel for the university, presented the case as a rehash of settled issues — as opposed to a first-impression matter — and couched his argument in two Court of Appeals precedents. One was Hudson View Properties v. Weiss, 59 NY2d 733 (1983), where the court said State Human Rights Law did not prohibit the eviction of a woman who was living with her boyfriend in violation of a lease provision restricting occupancy to “immediate family members.” The other was Manhattan Pizza Hut Inc. v. New York State Human Rights Appeal Board, 51 NY2d 506 (1980), where the court held that an anti-nepotism policy did not constitute unlawful discrimination based on marital status. Jacoby was not immediately available for comment on Monday.

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