Binghamton GHS Employees Federal Credit Union v. State Division of Human Rights

Lawton, J.

(dissenting). I dissent. The Commissioner’s finding of jurisdiction in unlawful discrimination cases is entitled to great weight and should be annulled only in the clearest of cases (see, Matter of Board of Educ. v New York State Div. of Human Rights, 56 NY2d 257, 261; Matter of Imperial Diner v State Human Rights Appeal Bd., 52 NY2d 72, 77). This is not such a case in that there are ample facts to support the Commissioner’s determination that the credit disability policy was “inextricably intertwined” with the car loan to constitute "a term and condition of credit”. The disability insurance policy was offered as part of every installment loan and was not offered separately. The amount of benefits and the duration of the policy were determined by the amount and duration of the loan. The policy benefited both the borrower and lender. The borrower is protected against a default during periods of disability, while the lender makes a profit on the issuance of the policy and is afforded protection against a default.

The majority’s determination that the Commissioner is without jurisdiction to act in this instance is founded solely on the fact that the disability insurance coverage was optional and therefore cannot be considered as a term or condition of credit. I do not believe that fact to be controlling.

While these optional policies may not be said to be a condition to the granting of credit, it certainly becomes a term or part of the loan transaction once the loan is made and the policy issued. There no longer is any question that the denial of disability benefits incurred during normal pregnancies in a protected activity is discriminatory (Brooklyn Union Gas Co. v New York State Human Rights Appeal Bd., 41 NY2d 84). The proper question to be asked therefore is whether a lender, as part of its regular loan procedures, can offer a disability benefits policy, whether optional or not, that discriminates against women? I believe not. The end result in this case is that a woman, unlike a man, is denied the opportunity to obtain full disability protection. Thus, when a woman obtains insurance coverage as part of the loan transaction, she is being deprived of full disability benefits by reason of her sex in violation of the Human Rights Law. The fact that the policy in question is approved by the Superintendent of Insurance is immaterial. In this protected area the Superintendent’s regulations must be read as setting forth a concurrent standard which does not abrogate the independent standard and expressed commands of the Human Rights Law (see, Brooklyn Union Gas Co. v New York State Human Rights Appeal Bd., supra, at 87-88). (Article 78 proceeding transferred by order of Supreme Court, Monroe County, Patlow, J.) Present — Dillon, P. J., Callahan, Boomer, Lawton and Davis, JJ.