Opinion
October 29, 1981
Order of the Human Rights Appeal Board, dated December 18, 1980, which affirmed the determination of the Commissioner of the State Division of Human Rights finding petitioners guilty of unlawful discrimination because of sex in terms, conditions, and privileges of employment, unanimously annulled, on the law, the petition granted, and the complaint dismissed, without costs or disbursements. The cross motion to enforce the order of the Human Rights Appeal Board is unanimously denied, without costs or disbursements. The record conclusively establishes that the commissioner's determination is unsupported by the evidence and that the complainant was denied pregnancy-related disability benefits solely because she had not applied for them within the 26-week period provided by subdivision 1 of section 217 of the Workers' Compensation Law. While much of this period would have run prior to the decision in Brooklyn Union Gas Co. v. State Human Rights Appeal Bd. ( 41 N.Y.2d 84) which cleared the way for pregnancy-related disability benefits, it is unwarranted speculation to assume that the petitioners would not have approved an application for such benefits made prior to that decision. This small-sized employer of few persons has had one other application for pregnancy-related disability benefits and the claim was paid because it was timely filed.
Concur — Murphy, P.J., Ross, Markewich, Bloom and Lynch, JJ.