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Passaic Daily News v. Blair

Decided: August 8, 1973.

THE PASSAIC DAILY NEWS, A CORPORATION OF NEW JERSEY, PLAINTIFF-APPELLANT, TRENTON TIMES CORPORATION, INTERVENOR-APPELLANT,
v.
JAMES H. BLAIR, DIRECTOR OF THE DIVISION ON CIVIL RIGHTS OF THE STATE OF NEW JERSEY, AND GEORGE F. KUGLER, JR., ATTORNEY GENERAL OF THE STATE OF NEW JERSEY, DEFENDANTS-RESPONDENTS



For affirmance -- Chief Justice Weintraub and Justices Jacobs, Proctor, Hall, Mountain and Sullivan and Judge Conford. For reversal -- None. The opinion of the Court was delivered by Conford, P.J.A.D., Temporarily Assigned.

Conford

[63 NJ Page 476] This case concerns the validity of the Employment Advertising Rule, N.J.A.C. 13:11-1.1 et seq.,*fn1 adopted by the Director of the Division on Civil Rights in the Department of Law and Public Safety. Appellants Passaic Daily News and Trenton Times challenge the Rule on the ground that it incorrectly interprets the Law Against Discrimination, N.J.S.A. 10:5-1

et seq., to hold newspapers responsible for violation of the law by maintaining classified advertising employment columns which are segregated on the basis of sex and by publishing classified employment advertisements submitted by advertisers which express illegal discriminatory limitations. The New Jersey Press Association, as amicus curiae, supports the arguments made by the appellants, and contends additionally that the Rule is unconstitutional, primarily on the ground that it abridges the freedom of the press guaranteed by the First and Fourteenth Amendments of the federal Constitution.

This action originated as a suit brought by Passaic Daily News in the Law Division of the Superior Court against the Director and the Attorney General. The newspaper sought in part a declaratory judgment that its classified advertising format, which included separate "help wanted" columns designated "male", "female" and "male-female", was in conformity with the Law Against Discrimination. About two weeks after the suit was filed the Director published in the New Jersey Register a notice of intention to adopt the Rule and at the same time the Attorney General moved to dismiss the complaint, or, in the alternative, to stay the action until the Director had taken action on the proposed Rule. The Passaic Daily News then moved for summary judgment, and the trial court reserved decision on both motions on March 30, 1972.

On April 3 and 4, 1972 the Director conducted public hearings on the proposed Rule. He subsequently adopted the Rule with certain modifications. Thereafter, the Law Division held that it was without jurisdiction over the subject matter of the complaint and it transferred the case to the Appellate Division "as an appeal challenging the validity of the Employment Advertising Rule. . . ." See R. 2:2-3(a). The Appellate Division granted Trenton Times Corporation leave to intervene in the appeal and stayed enforcement of the Rule pending determination of the appeal. On motion of the Attorney General this Court certified the case before argument

in the Appellate Division. 62 N.J. 187 (1972). The New Jersey Press Association was granted leave to submit a brief and argue the cause as amicus curiae.

The Employment Advertising Rule interprets the Law Against Discrimination, particularly N.J.S.A. 10:5-12, subds. a., c., and e., to prohibit employers, employment agencies, unions and newspapers or other publications from publishing or causing to be published classified employment advertisements under a column heading which is segregated on the basis of race, creed, color, national origin, ancestry, age, sex or marital status. N.J.A.C. 13:11-1.3. In addition, the Rule declares that it is a violation of the act for an employment advertisement to be published by any of the above if it expresses in its text a direct or indirect preference based on any of the said prohibited criteria unless such preference is based on a "bona fide occupational qualification". N.J.A.C. 13:11-1.1, 13:11-1.4. This exception is described as including only those vocational qualifications which are "reasonably necessary" to the normal operation of the particular employer, and is to be interpreted so that individuals will be considered for employment on the basis of their individual capacities and not on the basis of any characteristics generally attributable to a particular group of people. N.J.A.C. 13:11-1.5. The Rule provides that the exception for a sex-classification "may be warranted where it is necessary for authenticity or genuineness, such as for an actor or actress, or where the job in question necessarily involves intimate personal contact with persons of the opposite sex". Ibid.

The Rule also requires the Division to respond to inquiries as to whether a particular job qualifies for a bona fide occupational qualification in respect of one of the ordinarily illegal preference criteria. The Division's responses are to be made "promptly, and whenever possible no later than two hours after the inquiry is received". N.J.A.C. 13.11-1.6. If a newspaper reasonably relies in good faith on the representation of its advertiser that the Division has

determined that the job has a bona fide occupational qualification, the newspaper will not be in violation of the Rule for printing the advertisement. Opinions given by the Division concerning bona fide occupational qualifications "shall be binding for the purpose of these provisions", unless the person seeking the opinion has not fully and accurately disclosed the relevant facts. Ibid.

The Rule contains guidelines for composition of "help wanted" advertisements. N.J.A.C. 13:11-1.4. These provide, inter alia, that except where sex is a bona fide occupational qualification ("bfoq", hereafter) the job title used in an advertisement must be neutral in respect of sex. If use of a neutral title is not practicable the advertisement must either include the job title which is the sex counterpart of the non-neutral title or the description "M/F". Illustrations are set forth in the text of the rule, e.g., "Salesman" is a prohibited term; permissible substitutes are "Salesperson", or "Salesman/woman" or "Salesman M/W". Ibid.

The appellant newspapers make these arguments against the validity of the Rule: (a) it is beyond the Division's rule-making authority insofar as it applies to newspapers since the statutory provision prohibiting discriminatory advertisements, N.J.S.A. 10:5-12 subd. c., mentions action only by "any employer or employment agency", and not newspapers; (b) the practice of sex-segregated column headings is not in fact discriminatory; (c) the Rule imposes an unreasonable burden on newspapers to determine whether a particular advertisement containing a gender requirement is justified on grounds of bfoq.

The amicus, while supporting appellants on the grounds mentioned, assails the regulation also as unconstitutional because impairing freedom of the press and in several other respects. In view of the very recent decision of the United States Supreme Court in Pittsburgh Press Co. v. The Pittsburgh Commission on Human Relations, U.S. ,

93 S. Ct. 2553, 37 L. Ed. 2d 669 (1973) it will be convenient to deal initially with the First Amendment issue.

I.

A comparison of the facts in Pittsburgh Press and those before us here reveals such substantial similarity as to render the decision in that case conclusive here on the issue of freedom of the press. Pittsburgh's anti-discrimination ordinance provided in Section 8(e) that it was unlawful for "any employer, employment agency or labor organization to publish or circulate, or to cause to be published or circulated" any advertisement indicating any discrimination because of race, color, religion, ancestry, national origin or place of birth, or sex. (Compare N.J.S.A. 10:5-12, subd. c.) Section 8(j) of the ordinance made it also unlawful for "any person, whether or not an employer, employment agency or labor organization, to aid, incite, compel, coerce or participate" in the doing of any unlawful discriminatory act. (Compare N.J.S.A. 10:5-12, subd. e.) The Pittsburgh Commission on Human Relations was required, under another section of the ordinance, to certify upon request of any person that a particular occupation or position was exempt from the ordinance provisions on grounds similar to those supporting a bfoq exemption.

On a complaint brought by the National Organization for Women, the Pittsburgh Commission on Human Relations found that the Pittsburgh Press "aided" employers and others in discriminating against women through a classified advertising format consisting of three separate columns headed, "Jobs-Male Interest", "Jobs-Female Interest", and "Male-Female Help", although a "disclaimer" notice was also printed. The NOW complaint did not allege any specific instance of discrimination, and indeed the record showed that the newspaper had -- after conferring with the Commission -- voluntarily attempted to eliminate the terms "male" and "female" in the body of employment

advertisements. See Pittsburgh Press Co. v. Pittsburgh Com'n on Hum. Rel., 4 Pa. Cmwlth. 448, 287 A.2d 161, 164 (Cmwlth. Ct. 1972). The Commission's determination was thus limited to a finding that the classified format described above aided discrimination per se. The Commission's decision was affirmed on appeal in the Court of Common Pleas, and then, by a 4-2 vote, affirmed with a modification not here significant in the Commonwealth Court. The Pennsylvania Supreme Court denied review.

The United States Supreme Court granted certiorari, and, in a 5-4 decision upheld the action of the Pennsylvania authorities as not violative of freedom of the press. The argument presented there and here is that a governmental regulation interfering with "editorial judgment" as to the make-up of advertising pages operates to cut into the freedom to publish as the newspaper sees fit and thereby abridges freedom of the press. The court rejected the contention, describing the advertisements as "commercial speech" as explicated in Valentine v. Chrestensen, 316 U.S. 52, 62 S. Ct. 920, 86 L. Ed. 1262 (1942), and since they were of an illegal character, held them beyond First Amendment immunity from prosecution pursuant to a state police-power regulation.

Pittsburgh Press is directly applicable and determinative as to the constitutional issue presented here. The Rule under review is not invalid as abridging freedom of the press.

II.

The core question on this appeal is whether the comprehension by the Employment Advertising Rule of newspapers within its scope is beyond the Division's rule-making power measured by the statute. In resolving that issue we will also deal with the appropriateness of the general prohibition therein of sex-segregated advertising columns.

We look first at the pertinent substantive provisions of the statute. N.J.S.A. 10:5-12, subd. a. declares it to be

an unlawful employment practice for an employer, because of race, creed, color, etc., marital status or sex to refuse to hire or employ an individual except, as to sex, "in those certain circumstances where sex is a bona fide occupational qualification reasonably necessary to the normal operation of the particular business or enterprise". N.J.S.A. 10:5-12, subd. c. makes it an unlawful employment practice or discrimination "for any employer or employment agency" to print or circulate any advertisement which expresses, directly or indirectly, any specification as to race, creed, color, etc., marital status or sex "unless based upon a bona fide occupational qualification". N.J.S.A. 10:5-12, subd. e. extends the declaration of unlawfulness contained in the other subparagraphs of N.J.S.A. 10:5-12 to the act of any person "whether an employer or an employee or not, to aid, abet, incite, compel or coerce the doing of any of the acts forbidden under this act, or to attempt to do so".

N.J.S.A. 10:5-3 sets forth a legislative finding and declaration that practices of discrimination because of race, creed, color, etc., sex or marital status "are a matter of concern to the government of the State, and that such discrimination threatens not only the rights and proper privileges of the inhabitants of the State but menaces the institutions and foundation of a free democratic State".

N.J.S.A. 10:5-4 declares it to be a "civil right" that all persons have the opportunity to obtain, inter alia, employment, without discrimination because of race, creed, color, etc., marital status or sex, "subject only to conditions and limitations applicable alike to all persons".

N.J.S.A. 10:5-6 creates "The Division on Civil Rights" in the Department of Law and Public Safety "with power to prevent and eliminate discrimination in the manner prohibited by this act against persons because of race, creed, color", etc., "marital status or sex". N.J.S.A. 10:5-8, subd. d. authorizes the Attorney General to appoint a Director of the Division on Civil Rights who may exercise the power of the Attorney General under N.J.S.A. 10:5-8,

subd. g. to "[a]dopt, promulgate, amend, and rescind suitable rules and regulations to carry out the provisions of this act".

All of the foregoing statutory references to discrimination on the basis of marital status or sex are attributable to amendment of the statute by L. 1970, c. 80 which added those categories to the Law Against Discrimination. This amendment was the result of a growing consciousness across the country, significantly represented by the anti-sex discrimination provisions of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2 and 3, that females were and are pervasively discriminated against in American society in respect of employment and promotional opportunities, with consequences not solely of injustice on an individual basis but also of injury to the national welfare in terms of the most advantageous deployment of available skills and talents in the professional and general work force. See Note, "Employment Discrimination and Title VII of the Civil Rights Act of 1964", 84 Harv. L. Rev. 1109, 1166-68 (1971); Murray & Eastwood, "Jane Crow and the Law: Sex Discrimination and Title VII", 34 Geo. Wash. L. Rev. 232 (1965); Note, 59 Georgetown L.J. 221 (1970); Boyer, "Help-Wanted Advertising -- Everywoman's Barrier", 23 Hastings L.J. 221 (1971); Kanowitz, "Sex-Based Discrimination in American Law, I", 11 St. Louis University L.J. 293, 326-330 (1967); Kanowitz, "Sex-Based Discrimination in American Law, III", 20 Hastings L.J. 305 (1968); Gardner, "Want-Ads Tomorrow: Neutral With Respect to Sex", in Hearings on Section 805 of H.R. 16098 Before the Special Subcom. on Educ. of the Comm. on Educ. and Labor, 91st Cong., 2d Sess. pt. 2, at 894, 896 (1970); Bem & Bem, "Sex Segregated Want Ads: Do They Discourage Female Job Applicants?" in Hearings, op. cit. supra, 891 et seq.; Cf. Paterson Tav. & Grill Owners Assn. v. Bor. of Hawthorne, 57 N.J. 180, 183-184, 189 (1970).

This court has heretofore adopted a broadly sympathetic construction of the Law Against Discrimination and has interpreted the provisions thereof pertaining to the remedial powers of the Division on Civil Rights and the Director thereof with that high degree of liberality which comports with the preeminent social significance of its purposes and objects. See Jackson v. Concord Company, 54 N.J. 113 (1969); N.J. Builders, Owners and Managers Association v. Blair, 60 N.J. 330, 339 (1972); Polk v. Cherry Hill Apartments, Inc., et als., 62 N.J. 55 (1972); Zahorian v. Russell Fitt Real Estate Agency, 62 N.J. 399 (1973). We are, moreover, warranted in placing considerable weight on the construction of the statute, represented by the Rule under review, by the administrative agency charged by the statute with the responsibility of making it work. See Griggs v. Duke Power Co., 401 U.S. 424, 433-434, 91 S. Ct. 849, 28 L. Ed. 2d 158 (1971); Weeks v. Southern Bell Telephone & Telegraph Company, 408 F.2d 228, 235 (5 Cir. 1969); 1 Davis, Administrative Law Treatise § 5.05, p. 314 (1958).

Although appellants quarrel with the wisdom and policy of the Rule provisions against sex-segregated advertising column headings on the purported basis that minority individuals, asserted to be unskilled in reading, find it easier to discover jobs appropriate to their gender under such listings, they do not and could not well assert that there is no causal relationship between the proscribed practice and the fostering of sex-discrimination in employment. Such a relationship is not only a matter of justifiable lay inference on the face of things, it is abundantly supported by convincing expert proofs adduced before the Director on the hearings antecedent to adoption of the Rule and by the copious literature on the subject, examples of which have been cited hereinabove.

Further support for the merit of administrative proscription of sex-segregated columns in ...


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