## Facts

- The Mayor of New York City issued Executive Order No. 50 to ensure equal employment opportunity compliance in city contracting.
- The order applied broadly to city contracts and required contractors to adopt and implement nondiscrimination employment policies.
- In addition to categories recognized in existing law, the order prohibited employment discrimination by city contractors based on “sexual orientation or affectional preference.”
- Contractors who refused to agree to or comply with the order could lose existing city contracts or be disqualified from future contracting.
- Religious and business organizations and individuals who sought or held city contracts challenged the sexual-orientation provisions as beyond mayoral authority and an unlawful assumption of legislative power.
- The trial court invalidated the challenged provisions; the Appellate Division reversed and upheld the order; the Court of Appeals reviewed on plaintiffs’ appeal.

## Issues

1. Whether the New York City Mayor, under the City Charter and applicable law, may prohibit city contractors’ employment discrimination based on “sexual orientation or affectional preference” by executive order when no statute recognizes that protected category.
2. Whether the New York Constitution’s equal protection guarantee is broader than the federal Equal Protection Clause so as to justify the executive order’s added protected category.

## Decision

- The Court of Appeals reversed the Appellate Division.
- The court held the Mayor lacked authority to create a new substantive nondiscrimination category for city contractors by executive order.
- The court held the New York equal protection clause is not broader than the federal provision and did not independently authorize the Mayor’s action.
- The sexual-orientation portions of Executive Order No. 50 were invalid as ultra vires.

## Legal Principles

- Under the New York City Charter, the Mayor may administer and enforce existing law in city contracting, but may not make major policy choices reserved to the City Council’s legislative power.
- An executive order that adds a protected class not found in statutory or constitutional requirements constitutes substantive lawmaking, not mere administrative implementation.
- New York’s equal protection clause (as applied in this decision) is coextensive with the federal Equal Protection Clause and does not, without legislation, require treating sexual orientation as a protected classification for contracting purposes.

## Conclusion

The Court of Appeals invalidated the executive order’s sexual-orientation nondiscrimination requirement for city contractors because it represented a legislative policy decision outside the Mayor’s executive authority, and state equal protection doctrine did not supply independent authority for the added prohibition.


Under 21 v. City of New York, 65 N.Y.2d 344 (N.Y. 1985)