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Paterson Tavern & Grill Owners Assn. Inc. v. Borough of Hawthorne

Decided: November 9, 1970.

PATERSON TAVERN & GRILL OWNERS ASSN., INC., A NON-PROFIT CORPORATION OF NEW JERSEY, ET AL., PLAINTIFFS-APPELLANTS,
v.
THE BOROUGH OF HAWTHORNE, A MUNICIPAL CORPORATION, ET AL., DEFENDANTS-RESPONDENTS



For reversal -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For affirmance -- None. The opinion of the court was delivered by Jacobs, J.

Jacobs

[57 NJ Page 181] The Appellate Division upheld a Hawthorne ordinance which prohibited licensed taverns in the Borough from employing female bartenders; the ordinance exempted female licensees tending their own bars as well as wives of

male licensees. 108 N.J. Super. 433, 441 (1970). Plaintiffs, the Paterson Tavern & Grill Owners Assn., Inc. and Harry Shortway, a licensed tavern keeper, appealed to this Court under R. 2:2-1(a)(1).

In 1968 the Borough of Hawthorne, acting in the exercise of police powers delegated by the Legislature (see N.J.S.A. 33:1-40; cf. N.J.S.A. 40:48-1, 2; N.J.S.A. 40:52-1), adopted an ordinance which embodied prohibitions of certain employments and activities in licensed premises. The Appellate Division struck some of the prohibitions while sustaining others. 108 N.J. Super. at 437-442. The Borough took no appeal and the plaintiffs have confined their appeal to that part of the judgment below which sustained the prohibition in the ordinance against the employment of female bartenders. We shall therefore confine ourselves to that single issue, passing any question as to the standing of the tavern owners' Association. See 108 N.J. Super. at 436-437; Elizabeth Federal Savings & Loan Ass'n v. Howell, 24 N.J. 488, 499 (1957); Hudson Bergen, etc., Ass'n v. Board of Comm'rs. of City of Hoboken, 135 N.J.L. 502, 510 (E. & A. 1947).

Though the plaintiffs have sought to invoke provisions of the Federal and State Civil Rights Acts (42 U.S.C.A. § 2000e-2(a); N.J.S.A. 10:1-1) we find no occasion for doing so. The Federal Act applies to an employer engaged in an industry affecting interstate commerce and employing 25 or more employees (42 U.S.C.A. § 2000e(b)); there is nothing before us to indicate that any of the tavern keepers here involved is such an employer. The Act contains a provision that it shall not be an unlawful practice to employ any individual on the basis of sex where sex is a "bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise." 42 U.S.C.A. § 2000e-2(e). The pertinence of this clause in cases involving employers otherwise governed by the Act need not detain us here. Cf. Kanowitz, "Sex-Based Discrimination in American Law, I," 11 St. Louis University L.J. 293, 329

(1967); Miller, "Sex Discrimination and Title VII of the Civil Rights Act of 1964," 51 Minn. L. Rev. 877, 894 (1967); Kanowitz, "Sex-Based Discrimination in American Law, III," 20 Hastings L.J. 305, 320, 341 (1968); Notes 1968 Duke L.J. 671, 705; 42 So. Cal. L. Rev. 183, 200 (1969).

Our State Civil Rights Act provides that the right of citizens to hold office or employment "shall not be denied or abridged on account of sex or marital status" and that "there shall be no discrimination based on sex or marital status" in appointments or other matters pertaining "to such office or employment." N.J.S.A. 10:1-1. Though the intended scope of the statute is not entirely clear we assume, solely for present purposes, that it covers private as well as public employment and prohibits the wholly arbitrary refusal by an employer to engage a fully qualified woman only because she is a woman. But that has no relation to the matter before us since here none of the employers is seeking to exclude female bartenders; on the contrary, they are seeking to employ them but have been precluded from doing so by the terms of the ordinance. If that ordinance were deemed currently to represent a reasonable exercise of the police power without infringement on any constitutional principle, then N.J.S.A. 10:1-1 would present no obstacle, for that particular statutory enactment was never intended to bar reasonable police power discriminations (108 N.J. Super. at 441) or to nullify specific legislative discriminations such as those embodied in N.J.S.A. 34:2-24, 28, 30.

Our early cases displayed no hesitancy in sustaining prohibitions against female bartenders as reasonable and constitutional exercises of the police power. See Hoboken v. Goodman, 68 N.J.L. 217 (Sup. Ct. 1902); Hoboken v. Greiner, 68 N.J.L. 592 (Sup. Ct. 1902); Annot., 172 A.L.R. 620 (1948). But they arose in a different social and moral climate when judges, along with others, entertained Victorian ideas as to women and their proper place in the scheme of things. Justice Bradley voiced then common sentiments when he said that he thought woman's natural "timidity and

delicacy" unfitted her for most civil occupations, that she properly belonged in the "domestic sphere," that her paramount mission was to fulfill "the noble and benign offices of wife and mother," that her pursuit of an independent career would be inimical to family harmony, and that the rules of law should be adapted accordingly. Bradwell v. Illinois, 16 Wall. 130, 141, 21 L. Ed. 442, 446 (1873).

Though by the mid-twentieth century, startling changes had occurred in the social and legal rights of women and in society's overall treatment of sexuality, the judges were still unwilling to strike down continuing legislative restrictions against female bartenders. In Goesaert v. Cleary, 335 U.S. 464, 69 S. Ct. 198, 93 L. Ed. 163 (1948) a divided three-judge District Court had upheld a Michigan statute which provided for the licensing of bartenders but prohibited any woman (except the wife or daughter of the male tavern keeper) from obtaining a bartender's license. The Supreme Court, with three Justices dissenting, affirmed in an opinion which noted that although "women may now have achieved the virtues that men have long claimed as their prerogatives and now indulge in vices that men have long practiced," the States are not constitutionally precluded "from drawing a sharp line between the sexes, certainly in such matters as the regulation of the liquor traffic." 335 U.S. at 466, 69 S. Ct at 199, 93 L. Ed. at 165. The opinion did not elaborate on its position that legislatures are not constitutionally required to reflect sociological insights or shifting social standards (but cf. Brown v. Board of Education, 347 U.S. 483, 492-496, 74 S. Ct. 686, 690-693, 98 L. Ed. 873, 879-881 (1954)) nor did it deal with the scope of women's ever-broadening rights to seek and obtain gainful employment. ...


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