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Harvard v. Bushberg Brothers Inc.

Decided: December 11, 1975.

LUCILLE INGRAM HARVARD, COMPLAINANT-RESPONDENT,
v.
BUSHBERG BROTHERS, INC., GILBERT BUSHBERG, HAROLD BUSHBERG AND STANLEY WALSH, RESPONDENTS-APPELLANTS



Kolovsky, Bischoff and Botter. The opinion of the court was delivered by Bischoff, J.A.D.

Bischoff

In June of 1972 Lucille Ingram Harvard, complainant, filed a complaint with the Division on Civil Rights charging that she was denied a promotion to the position of credit manager as a result of discrimination because of her sex. A public hearing was held before a hearing examiner who found discrimination in violation of N.J.S.A. 10:5-12(a) and recommended that complainant be awarded $2,170 compensatory damages and $1,000 humiliation damages. The Director of the Division entered an order adopting the examiner's findings and recommendations. The employers, respondents herein, appeal.

Complainant, having some eight months' experience in processing credit applications and making credit investigations, received a job in respondents' credit department working directly under the credit manager. While the nature and extent of her duties and authority were disputed, there was testimony that she did substantially the same work as the manager and did, indeed, fill in for him on his day off, while he was on vacation and for one week after he quit.

When the credit manager quit complainant applied for the job. She did not get it and immediately thereafter

voluntarily left the employ of respondents. The Director of the Division on Civil Rights found that sex discrimination was a causal factor in respondents denying to complainant a promotion to the position of credit manager.

Respondents' first contention is that there is insufficient evidence to support the conclusion that complainant was denied a promotion on account of any sex discrimination.

In order to establish an "unlawful employment practice" or "unlawful discrimination" on the basis of sex within the intent and meaning of the "Law against discrimination," N.J.S.A. 10:5-1 et seq. , it is not necessary that the sex discrimination be the sole reason for the employment practice under attack. If discrimination on the basis of sex played at least a part and was a causal factor in the failure of complainant to be given the job of credit manager, discrimination in violation of the statute has been established. Blair v. Freehold , 117 N.J. Super. 415, 417 (App. Div. 1971), certif. den. 60 N.J. 194 (1972); Laugesen v. Anaconda Co. , 510 F.2d 307, 316-317 (9 Cir. 1975); Gillin v. Federal Paper Board Co. , 479 F.2d 97 (2 Cir. 1973); King v. Laborers International Union , 443 F.2d 273 (6 Cir. 1971). So viewed, we are satisfied that there is substantial credible evidence in the record to support the conclusion that sex discrimination played a part as a causal factor in complainant's failure to get the promotion. We, therefore, will not disturb the findings of the Director. Jackson v. Concord Co. , 54 N.J. 113, 117 (1969); National Organization for Women v. Little League Baseball, Inc. , 127 N.J. Super. 522, 529 (App. Div. 1974).

Respondents next contend that since complainant is presently employed and does not seek injunctive relief, it follows that the primary relief sought by her is money damages. Respondents continue to argue that when the primary or sole relief sought is money damages, the reason underlying and justifying an administrative determination of a dispute between the parties ceases to exist and they should be relegated to the law courts. In support of this contention

respondents rely on the following language of the Supreme Court in the case of Zahorian v. Russell Fitt Real Estate Agency , 62 N.J. 399 (1973):

But it would seem entirely evident that the recognition of administrative authority to make minor or incidental awards need not carry with it any authority to entertain a matter where, because of the severity of the consequential injury and the extensiveness of the claim, the item of damages has become primary and the other relief incidental rather than the reverse. Surely there is nothing incompatible in concluding that while the Legislature contemplated that the Director would have authority to award compensatory damages for pain and suffering as well as economic loss, his authority would be confined to an award which truly constituted only "incidental relief" [citation omitted] rather than a primary item. [at 413]

Giving full weight to respondents' argument, we find it is not applicable here. The order entered by the Director of the Division on Civil Rights directs respondents to cease and desist from any act prohibited by New Jersey legislation, ...


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