Halpern, Crahay and Wood. The opinion of the court was delivered by Halpern, P.J.A.D.
[134 NJSuper Page 278] Appellants appeal from the final order of the Division on Civil Rights (Division) which determined that appellants had engaged in discriminatory practices in their past hiring and promoting of policemen and firemen, in violation of N.J.S.A. 10:5-1 et seq., and the remedies imposed in connection therewith. Appellants have conceded that their past hiring and promotional practices violated the statute, so that we are concerned only with whether paragraphs 6 and 11 of the remedies imposed in the final order are valid.*fn1
This matter came before the Division by virtue of two amended complaints which were heard together. The first was filed by respondent Charles S. Lige, and the second by the Director of the Division. Lige, a black man, complained that appellants' hiring procedures were unlawfully discriminatory in that they had a disparate effect on black applicants. The Director's amended complaint, in addition to Lige's charges, asserted that appellants' promotion examination practices and procedures were discriminatory in that they had a disparate effect on minority groups. Neither of the amended complaints charged respondents with intentionally discriminating, rather that the testing processes used resulted in unlawful discrimination. However, the statutes here involved are concerned with the consequences of respondents' acts, not their intentions.
A brief synopsis of the undisputed proofs will portray the situation then existing in Montclair with respect to the issues at hand. By the 1970 census Montclair had a population of 44,055 persons. There were 11,985 black inhabitants comprising about 27% of the population. The fire department consisted of 86 whites and three blacks, the latter group comprising 3.4% of the department. The police department consisted of 119 men of whom 15 were blacks, or 14.5% of the department. The fire department chief, his seven deputies, nine of ten captains and 12 lieutenants were white. The chief of police, the two deputies, eight of nine captains, six
of seven lieutenants and seven of eight sergeants were white. It was stipulated that for the past ten years six vacancies had to be filled annually in the police department and three in the fire department, and the same number of vacancies was estimated for the foreseeable future.
We were advised at oral argument, and it appears to be undisputed, that Montclair is attempting to eliminate its former illegal hiring and promotion practices. We, therefore, turn to the narrow issue remaining, namely, whether the directives contained in paragraphs 6 and 11 of the final order, imposing a quota system for Montclair's future hirings and promotions in the police and fire departments, were valid.
We are fully cognizant of the difficult issue confronting us and the far-reaching effect an ultimate determination will have on all employers and employees in New Jersey. We are also aware that there is no direct precedent to guide us in New Jersey in construing the power of the Division in ordering this type of remedy under N.J.S.A. 10:5-1 et seq., and that under similar federal and foreign state statutes the decisions are in conflict. The most recent decision of the United States Supreme Court in De Funis v. Odegaard, 416 U.S. 312, 94 S. Ct. 1704, 40 L. Ed. 2d 164 (1974), failed to pass on the issues there presented which, although in a different context are, to an extent, analogous to those confronting us herein. However, Justice Douglas' dissenting opinion points up the complexity and far-reaching implications of the problem.
We start with the truism that the Federal and New Jersey State Constitutions proscribe invidious discrimination in hiring because of marital status, sex, race, color or creed. New Jersey's legislative intent to this end is clearly set forth in a variety of statutes*fn2 proscribing discrimination in all forms, and they must be construed to give the Division broad powers to insure and protect those constitutional
and legislative mandates. See Fraser v. Robin Dee Day Camp, 44 N.J. 480 (1965). But those powers must not be exercised in such a way as to discriminate against others.
The temptation is great to attempt to right the wrongs against many minorities (black, white, yellow, brown and red) which have unfortunately existed for generations, by letting a small number of the minority groups now obtain what others similarly situated will be denied. Once a quota system is imposed, as was done here, such numerical criteria will unquestionably result in the kind of invidious discrimination and injustice the quota system was designed to prevent.
The remedy here imposed may enable a few qualified members of a minority group to reach a point in numbers which the Division believes to be numerically correct based on a formula which uses percentages of minorities to population. But what minorities are we talking about? We pride ourselves as a nation on the "mix" of our people wherein history has proven our strength lies. But that "mix" is comprised not only of blacks, but of Poles, Jews, Scandinavians, Italians, Puerto Ricans, Hungarians, Cubans, Germans and others too numerous to list. It is one thing for the Division to find that a given person has been discriminated against and give him relief. See Zahorian v. Russell Fitt ...