For affirmance -- Chief Justices Hughes, Justices Mountain, Sullivan, Clifford and Schreiber and Judge Kolovsky. Dissenting -- Justice Pashman. The opinion of the court was delivered by Schreiber, J. Pashman, J. (dissenting).
In a complaint filed with the Division of Civil Rights, Charles S. Lige charged the Town of Montclair with violating the Law Against Discrimination, N.J.S.A. 10:5-1 et seq., by refusing to hire him as a fireman because he was black. He averred that he had applied for a fireman's position and had failed a written test taken on November 6, 1971. This complaint was amended to allege that the testing and selecting procedures "are fair in form but discriminatory in operation" and to seek compensatory damages.
A second amended complaint, which incorporated the first amended complaint, added a second count in which the Director of the Division of Civil Rights claimed that the written employment examination had an unlawful discriminatory effect on black applicants and was not properly designed to measure the traits necessary for successful performance
of the duties of firemen and policemen.*fn1 He also charged that the selection procedures were "unvalidated" and had an unlawful potential to discriminate against black applicants.
Another complaint was filed by the Director against Montclair alleging that on December 29, 1971, nine black police officers were denied promotions as a result of tests which were not professionally validated and had a disparate effect on minority candidates. Therefore, it was asserted the Town violated the Law Against Discrimination.
Both matters were heard at the same time before a designated Hearing Examiner. At the hearing Mr. Lige testified that he had applied for the position of a Montclair fireman after having read a newspaper advertisement that an examination was to be given for police and firemen positions, although there were no openings in the fire department. Although Mr. Lige had graduated from an integrated high school in West Virginia and had also successfully completed one year of college, he failed the written test. Subsequently he found another job. Since no fireman had been added to the force, at the hearing Mr. Lige abandoned any claim for compensatory relief. The Hearing Examiner refused to permit questioning with respect to whether Lige would now or in the future accept a job with the Montclair Fire Department and of what, other than his educational background, his experience and training had consisted.
The Division produced one other witness, Mr. Carmen Cappadona, who had been a field representative for about two and a half years. As a result of his interviews with three screening board members (their function is explained below), he ascertained that in November 1971, applicants for the police and fire departments were given the same written
standardized personnel examination, known as the Wonderlic test.*fn2 It consisted of 50 questions testing vocabulary comprehension, computation of mathematical problems, and deductive reasoning and ascertaining items of general knowledge.
To pass, the applicant had to attain a minimum score of 17 points and be in the top 75% of those taking the exam. Mr. Cappadona stated that he had been told the test had not been professionally validated. He was not qualified to judge whether the test was job related and did not know if the test could have been validated. The only test he examined was the one given on November 6, 1971.
If the applicant passed the written examination and the investigation by the detective bureau verified the record data, he would be then interviewed by a screening board which consisted of a psychologist, the town attorney, a college professor, a public school principal and an investment broker. The board had not been given any guidelines to be followed in its screening process or evaluation. The applicant was asked why he wanted to be a policeman or fireman; if a policeman, what he would do if he had to arrest a friend; whether if he were married, the hours of duty would cause any problems; and what personal injuries he had sustained. The board considered the applicant's attitude and demeanor. It graded each applicant and its recommendations were submitted to the Commissioner of Public Safety. The Commissioner, guided by no written standards, exercised an unrestricted discretion in making his choice.
The November 1971 test was taken by 58 men. It was not known who were black and who were white, so Mr. Cappadona eliminated approximately 12 to 15 whom he
assumed were Caucasian because of their names, telephoned about 19 and attempted to visit 25 or 26. On this basis he concluded that 19 applicants were black and 39 white. Of the 3 blacks and 26 whites who passed the written test, 2 blacks and 10 whites did not survive the investigation made by the detective bureau and 2 whites were rejected by the screening board. The remaining 1 black and 6 of the 14 whites were appointed to the police department. Of the remaining white applicants 7 were placed on the police department waiting list. None was appointed to the fire department, but one was placed on the fire department waiting list.
As of June 1, 1972, there were 104 policemen, of whom 15 were black. The members of the police force had been hired at many different dates between December 1, 1936 and January 1, 1972. The blacks had been selected between May 15, 1940 and January 1, 1972. Since 1966, 9 of the 45 policemen employed had been black.
As of April 21, 1972, 3 of the 89 firemen were black. The employment of the 89 had commenced at various times between June 1, 1939 and October 19, 1971. Since 1970, only 3 had been hired, one of whom was black.
In 1970, Montclair had a population of 44,000, of which 12,000 were black. Of Essex County's 930,000 inhabitants, about 280,000 were black.
Mr. Cappadona testified that the police promotion procedures in 1971 (he did not examine the procedures in other years) were generally comparable to the hiring practices. The employment ladder ascended from patrolman and detective to sergeant, lieutenant and captain. Detectives were selected without written examination. Of the 14 detectives, 4 were black. However, to become a police sergeant, lieutenant or captain, a written exam had to be taken. The same screening board interviewed the applicants and made recommendations to the Commissioner who again exercising his unbridled discretion chose the successful promotees.
The 1971 written examinations for promotion were prepared by the Commissioner. The questions were derived from tests used by the National and State Association of Police Chiefs, the Essex County Police Academy and from his own experience. Cappadona was told the questions had not been professionally validated. He had not studied the questions, but understood they were geared to circumstances in Montclair. Examination papers were not signed, but only carried a number so that the applicant's identification remained unknown to the grader. A grade score of 70 was passing. The 1971 written exam for sergeant was failed by the 7 blacks who took it. Thirteen of the 29 whites passed. One black took the test for lieutenant and one for captain. They received the lowest exam grades in their respcetive groups and were not promoted. In 1969, when 5 promotions were made, 3 were black. No promotions had been made since then until 1971.
Each applicant for a promotion had received job evaluation scores from his supervisors. These ratings, which were also considered in the promotion process, ranged from 58 to 87.5 for the patrolmen and detectives. The black policemen's scores were between 58 and 81.3; 5 exceeded 70.
The five-man screening board's interrogation was directed to indicia of leadership, ability, initiative and good judgment. No blacks were interviewed for a sergeant's position since all had failed the written examination. Each black applicant had been screened for the lieutenant and captain vacancies.
In May 1972 a new Commissioner of Public Safety was chosen. He testified that because of the complaints that had been filed with the Division, Dr. John Seymour, Chairman of the Psychology Department at Montclair State Teachers College, was requested to prepare and submit an examination to be used for hiring purposes. Dr. Seymour proposed the Revised Beta Examination, which then replaced the Wonderlic test. The new examination consisted of 6 tests, all of which were visual, that is, based on pictures and drawings.
Each applicant was required to pass a physical examination. A new three-person screening committee had been designated to interview the applicants. The committee members had been furnished with specific criteria as guidelines. In 1973, there were 5 police vacancies and the new exam was given under the auspices of the college. The top 15 whose scores ranged down to 70 were selected. Only 2 blacks were in the group and one was hired. The Commissioner expressed his thoughts about selecting new employees:
At the hearing the Town moved to dismiss Lige's complaint because he had suffered no damages, had not shown any discrimination was practiced against him, and was not seeking any redress. The Town denied any discrimination in its hiring or promotions and moved for dismissal of the Division's claims because it had failed to make out a prima facie case.
The Hearing Examiner found that 67% of the whites and 16% of the blacks passed the employment exam in November 1971, and that 36% of the white and 6% of the black applicants were approved for hiring. As for promotions, no blacks in 1971 passed the written test for sergeant and 45% of the whites did. No blacks were promoted in 1972 and 32% of the whites were. The black population of Montclair was 27.2%, and of Essex County 30%, but only 14% of the police department and 3.4% of the fire department were black. The Hearing Examiner held that these percentages when "taken together with the administration of invalidated tests," which demonstrated a "disproportionately negative effect on blacks," constitute a prima facie showing of discrimination and shifted the burden of going forward to the Town, although admittedly there had been no intentional discrimination by the Town.*fn3 [72 NJ Page 12] Since the Town did not affirmatively offer significant evidence to establish the job relatedness of the written hiring or promotional tests, he concluded that administration of the tests violated the Law Against Discrimination.
The Hearing Examiner also found that neither the screening board nor the Commissioner had received any standards or guidelines by which to operate. He found the entire selection process discriminatory. He recommended that the Town be found guilty of violating N.J.S.A. 10:5-4 and 5:12(a), and that the Director find that Lige was denied an equal opportunity because of his race and that he be placed on the fire department waiting list. The Hearing Examiner suggested issuance of an order to cease and desist use of any examination which had not been professionally validated, of oral screening board interviews, and of the exercise of an absolute discretion in the Commissioner without effective standards and protections against racial discrimination. He also indicated that the Director's order could require appropriate affirmative action to minimize "future effects of practices which have in the past resulted in racial discrimination."
The Director adopted the Hearing Examiner's findings of fact and conclusions of law. He ordered discontinuance of all tests until professionally validated and approved by the Division. Oral interviews by the Examining Board in the hiring process were prohibited. He ordered that Charles Lige and all others who took the exam on November 6, 1971 were to be reconsidered for the positions for which they applied, and that all black applicants who were denied promotion in 1971 were to be reevaluated. Nondiscriminatory selection and promotion methods were to be devised, subject to the Director's approval.*fn4 To remedy the past discrimination he provided:
Future appointments to the Montclair Fire Department shall be conducted on the following basis: One (1) qualified minority applicant
shall be selected for every one (1) qualified white applicant until the total number of minority officers on the Fire Department equals at least fifteen (15) persons.*fn5
The order provided that all black applicants who had been denied promotions in the Police Department in 1971 were to be reevaluated in accordance with non-discriminatory standards. The order stated that:
One qualified Black applicant shall be promoted for every one qualified white applicant until 50% of those minority applicants deemed qualified by the re-evaluation have been promoted.
Montclair appealed from the entire order, but limited its appellate contentions to an appeal from the above quoted remedial portions of the order for the stated reason that Montclair had chosen to revise its selection and testing procedures. The Appellate Division reversed and we granted the Division's petition for certification. 68 N.J. 490 (1975).
The Appellate Division distinguished between relief to a specific person or persons and a remedy on a "class quota basis." It pointed out that "to rectify the wrongs of the past by a method of racial quotas which in itself invidiously discriminates against others * * * would defeat the very purpose of N.J.S.A. 10:5-1 et seq., for which the Division was created, namely, to safeguard all individuals from invidious discrimination because of sex, race, color or creed." Lige v. Town of Montclair, 134 N.J. Super. 277, 281-282 (1975). It held the Division had exceeded its statutory power, had violated the federal and state constitutions and therefore struck down the ratio remedies. Id. at 282.
Anti-discrimination principles are espoused in the New Jersey Constitution and the Law Against Discrimination, N.J.S.A. 10:5-1 et seq. Article I, par. 5 of the 1947 Constitution, which did not exist in the 1844 Constitution, states:
No person shall be * * * discriminated against in the exercise of any civil or military right, * * * because of religious principles, race, color, ancestry or national origin.
This provision should be evaluated in the light of its historical meaning. Under the 1844 Constitution an individual's civil rights were not to be denied on account of his religious principles. Article I, par. 4. At the Constitutional Convention of 1947 the Joint Committee on Constitutional Bill of Rights reported to the Convention that "impairment of the basic truth of equality [had] manifested itself in the undemocratic practice of many employers to refuse employment to persons of certain racial or religious groups." III Proceedings of 1947 Constitutional Convention at 344-345. The Committee, recognizing that the Legislature had enacted the Law Against Discrimination and desirous of eliminating any possible doubts of its constitutionality, stated that "[t]oday, the principal threats to the truth of equality are found in practices of discriminations because of race, color, religion or national origin in the fields of employment, education, enjoyment of property and pursuit of a livelihood in a business, trade or profession." Id. at 345. It recommended that a new paragraph 5 be inserted in Article I which would include freedom from discrimination because of race, color, religion or national origin in obtaining employment.
The Committee acknowledged that distinctions based on race, color, religion or national origin were abhorrent to our democratic ideals and social conscience. It agreed wholeheartedly with Chief Justice Stone's comment in Hirabayashi v. United States, 320 U.S. 81, 100, 63 S. Ct. 1375, 1385, 87 L. Ed. 1774, 1786 (1943):
* * * Distinctions between citizens solely because of their ancestry are by their very nature odious to a free people whose institutions are founded upon the doctrine of equality.
The Law Against Discrimination, enacted in 1945, predated the Constitution by two years. The Legislature deemed that Law an exercise of the State's police power to promote the general welfare and to fulfill the provisions of the Constitution guaranteeing civil rights. N.J.S.A. 10:5-2. Those rights referred to in the statute may be considered to be those spelled out in greater detail in the 1947 Constitution. It has been held that effectuation of the mandate in Article I, paragraph 5 has been implemented by the Law. Levitt & Sons, Inc. v. Div. Against Discrimination, 31 N.J. 514, 524, appeal dismissed, 363 U.S. 418, 80 S. Ct. 1257, 4 L. Ed. 2d 1515 (1960).
The Law pronounces that discrimination because of race, creed, national origin or color threatens not only individual rights and privileges but menaces the institutions and foundation of a free democratic State. N.J.S.A. 10:5-3. All persons are to have the opportunity to obtain employment without such discrimination. N.J.S.A. 10:5-4. Any employer who refuses to hire or discriminates against an employee with respect to employment terms, conditions or privileges is guilty of an unlawful employment practice or unlawful discrimination. N.J.S.A. 10:5-12.
The act also provides that an aggrieved person may file with the Attorney General a verified complaint charging unlawful discrimination. N.J.S.A. 10:5-13. After investigation the Attorney General may conclude probable cause exists to support the allegations of the complaint and seek to resolve the matter by conciliation. If not amicably adjusted, he is to issue and serve a complaint in the name of the Division and a hearing is then to be held before the Division. The Commissioner of Labor and Industry is likewise empowered to make and file complaints. N.J.S.A. 10:5-13.
We have had occasion to acknowledge the strength of the public policy and the broad interpretation accorded the provisions of the statute. See Jackson v. Concord Company, 54 N.J. 113 (1969); Passaic Daily News v. Blair, 63 N.J. 474, 484 (1973). In David v. Vesta Co., 45 N.J. 301, 327 (1965), we adverted to the fact that unlawful discrimination "is regarded as a public wrong and not merely the basis of a private grievance."
The remedial powers, reflecting that strong public policy, authorize the Director to "issue and cause to be served on such respondent an order requiring such respondent to cease and desist from such unlawful employment practice or unlawful discrimination and to take such affirmative action, including, but not limited to, hiring, reinstatement or upgrading of employees, with or without back pay, * * * or extending full and equal * * * privileges to all persons, as, in the judgment of the director, will effectuate the purpose of this act * * *." N.J.S.A. 10:5-17.
This broad remedial affirmative power includes the right to take positive action which will operate prospectively to eliminate and prevent unlawful discrimination. We have hitherto, for example, upheld orders that required the posting in housing projects of notices of the Director's order prohibiting discrimination. These orders also required that pertinent data be constantly updated and submitted to the Division so that the Director could be assured that no unlawful discrimination in the housing project was being practiced. Zahorian v. Russell Fitt Real Estate Agency, 62 N.J. 399, 409-410 (1973). So, too, we have affirmed the validity of a rule requiring owners of multiple dwellings to file annual reports disclosing rentals and the identification of tenants. N.J. Builders, Owners and Managers Association v. Blair, 60 N.J. 330 (1972). In every case where the remedial authority of N.J.S.A. 10:5-17 has been used, the sanction has been applied to correct an injustice to an individual which has occurred and to be assured that no future discriminatory acts will take place.
The act has never been construed to authorize melioration of the effects of past discrimination in favor of individuals against whom no discrimination has been practiced. The Division in its pamphlet, Employer Guide to the New Jersey Anti-Discrimination Law (1965) in a section entitled "Quotas and Qualifications" has also construed the Law Against Discrimination to prohibit racial quotas to remedy past discrimination. The following questions and answers are set forth in the brochure:
Q. Is it legal for an employer to make an agreement with any group to hire a specific number of non-whites?
A. No. Such agreements are discriminatory in nature.
Q. Should an employer discriminate against white applicants in the belief that he is complying with either State or Federal Law?
A. There should be no discrimination either for or against groups of employees, but rather provision for equality of opportunity and fair treatment for all individual applicants. [Emphasis in original; at 5].
We find nothing in the legislative history which bespeaks an interpretation authorizing the dissolution of discriminatory consequences by a racial quota. The statutory language refers to future action to cure a wrong to an individual. It addresses itself with respect to persons generally, as distinguished from individuals against whom discrimination has been practiced, only in the sense of making certain that they will receive in the future full and equal privileges. This is not to say that some actions to eliminate or reduce the results of prior discrimination may not be appropriate to assist the extension of full and equal privileges to persons against whose class there has been discrimination. But the act does not empower the Division to accomplish that result by imposition of a racial quota.
The Director of the Division on Civil Rights and the United States Equal Employment Opportunity Commission, amicus curiae, argue that federal courts have construed Title VII of the Federal Civil Rights Act of 1964 to authorize racial quotas to remedy past injustices to a class in favor of individuals who had not been directly and adversely
affected. 42 U.S.C. §§ 1981, 1983, 2000e-5(g). See Associated Gen. Contractors of Mass., Inc. v. Altshuler, 490 F.2d 9, 16-17 (1st Cir. 1973), cert. den. 416 U.S. 957, 94 S. Ct. 1971, 40 L. Ed. 2d 307 (1974); Rios v. Enterprise Ass'n Steamfitters Loc. 638 of U.A., 501 F.2d 622, 629-630 (2d Cir. 1974); Erie Human Relations Commission v. Tullio, 493 F.2d 371 (3d Cir. 1974); Morrow v. Crisler, 491 F.2d 1053, 1056 (5th Cir.) (Fourteenth Amendment), cert. den. 419 U.S. 895, 95 S. Ct. 173, 42 L. Ed. 2d 139 (1974); United States v. Masonry Cont. Ass'n of Memphis, Inc., 497 F.2d 871, 877 (6th Cir. 1974).
The federal courts, however, have not sweepingly accepted the racial quota remedy. The Second Circuit has limited use of quotas to situations where there has been a "clearcut pattern of long-continued and egregious racial discrimination" and the effect of the reverse discrimination must not be "identifiable", namely, that it may not be concentrated on a relatively small group of non-minority persons. Kirkland v. New York State Dept. of Correctional Serv., 520 F.2d 420, 427 (2d Cir.), reh. en banc den., 531 F.2d 5 (2d Cir. 1975). The Kirkland test has not been satisfied in this case. Montclair's discrimination was unintentional and only the tests given in November 1971 were shown not to have been validated. A clear-cut pattern of long continued and egregious racial discrimination has not been established. Furthermore, the effect of the reverse discrimination at least with respect to promotions in the police department is directed against a small identifiable non-minority group.
Some federal courts have refused to sanction racial quotas to remedy past discriminatory promotion practices. See Bridgeport Guardians, Inc. v. Members of Bridgeport Civil Service Commission, 482 F.2d 1333 (2d Cir. 1973), cert. den. 421 U.S. 991, 95 S. Ct. 1997, 44 L. Ed. 2d 481 (1975), where the Court wrote with respect to promotions that "the imposition of quotas will obviously discriminate against those Whites who have embarked upon a police career with the
expectation of advancement only to be now thwarted because of their color alone. The impact of the quota upon these men would be harsh and can only exacerbate rather than diminish racial attitudes." [ Id. at 1341]. See also Equal Employment Opportunity Com'n v. Local 638, 532 F.2d 821 (2d Cir. 1976); Patterson v. American Tobacco Co., 535 F.2d 257 (4th Cir. 1976).
We note in passing that some Congressional history indicates that racial quotas were not to be permissible under the Federal Civil Rights Act of 1964. See 110 Cong. Rec. 7213 (1964) (memorandum of Senators Case and Clark); 110 Cong. Rec. 7218 (1964) (memorandum of Senator Clark); 110 Cong. Rec. 12723 (1964) (remarks of Senator Humphrey); 110 Cong. Rec. 14331 (1964) (remarks of Senator John J. Williams); N. Glazer, Affirmative Discrimination 44-45 (1975); see also 42 U.S.C. § 2000e-2(j). See dissenting opinion of Judge Hays in Rios v. Enterprise Ass'n Steamfitters Loc. 638 of U.A., 501 F.2d at 634, and concurring opinion of Judge Feinberg in Equal Employment Opportunity Com'n v. Local 638, 532 F.2d at 833.
Two recent cases have rejected the use of quotas as appropriate affirmative action under the Federal Civil Rights Act. In Flanagan v. President and Directors of Georgetown College, 417 F. Supp. 377 (D.D.C. 1976), use of a quota to distribute scholarship funds as part of an affirmative action program under Title VI of the Civil Rights Act of 1964 was rejected. The District Court held that:
While an affirmative action program may be appropriate to ensure that all persons are afforded the same opportunities or are considered for benefits on the same basis, it is not permissible when it allocates a scarce resource (be it jobs, housing or financial aid) in favor of one race to the detriment of others. [ Id. at 384].
In Cramer v. Virginia Commonwealth University, 415 F. Supp. 673 (E.D. Va. 1976), the court refused to permit the federally subsidized defendant university to discriminate against the plaintiff applicant for a teaching position on
the ground of sex where defendant was attempting to compensate for past deficiencies. To correct the imbalance in this manner would violate Title VII. The court concluded that "[r]eliance upon such discriminatory practices to achieve 'quotas' or 'goals' is the use of an unconstitutional means to achieve an unconstitutional end." [ Id. at 680].
We are satisfied that the federal statute and the federal judicial interpretations which sanction racial quotas and discriminations against persons because of race are not apposite.*fn6
The Director, to rectify a racial imbalance in the Montclair Police and Fire Departments, adopted two racial quotas. One-half of future appointments to the fire department had to consist of qualified blacks until there were 15 blacks in the department. Promotions in the police department required that one qualified black be promoted for every qualified white until 50% of the qualified blacks, whose promotions had been rejected in 1971, had been advanced.
The Director's orders granted priorities to black applicants and employees vis-a-vis others (assuming the minimum standard is met) without regard to the particular training, experience, and education of each applicant. It may be significant that only two blacks were in the top 15 of those who took the Revised Beta Test which, we were advised on oral argument, has been approved by the Division. The lack of some basic educational prerequisites such as the ability to read and understand may have resulted in failure. Equality of opportunity in employment will become more realistic when co-equality of opportunity in education exists. Lowering the standards for the Montclair Police
and Fire Departments is not the solution. See N. Glazer, Affirmative Discrimination 51-66 (1975).
Although the new examination procedures for hiring and promotions are to be non-discriminatory, the order permits a less qualified black to be employed or promoted over a more qualified white.*fn7 The inconsistency of applying non-discriminatory methods of employee selection and then disregarding those methods on racial grounds is apparent. Inherent in the Division's orders is a rejection of the concept that the more or most qualified should be hired and promoted. This rejection violates the fundamental precept in a democratic society that merit, not skin color, should determine an individual's place in society. Judge Smith in Equal Employment Opportunity Com'n v. Local 638, 532 F.2d at 827, put it succinctly: ". . . 'reverse discrimination' contradicts our basic assumption that individuals are to be judged as individuals, not as members of particular racial groups."*fn8 Racial criteria squarely contradict the express and unambiguous language in Article 1, par. 5 of our Constitution.
In Taylor v. Leonard, 30 N.J. Super. 116 (Ch. Div. 1954), Justice Sullivan, then sitting as a Chancery Judge, struck down as violative of that constitutional provision a policy of the City of Elizabeth which applied a quota system
to determine the number of black occupants who were permitted to live in a public housing project. The quota limited black occupants to the percentage of black population in the City. Justice Sullivan pointedly wrote:
The evil of a quota system is that it assumes that Negroes are different from other citizens and should be treated differently. Stated another way, the alleged purpose of a quota system is to prevent Negroes from getting more than their share of the available housing units. However, this takes for granted that Negroes are only entitled to the enjoyment of civil rights on a quota basis. [ Id. at 119].
The eventual survival of any form of government necessarily depends on the equal apportionment of the rights and privileges of citizenship as well as its obligations and duties among all its citizens irrespective of race, color or creed. Such a principle has long since been the keystone of our national and state form of government. [ Id. at 121].
Curing an illegally imposed racial discrimination against an individual is understandable and justifiable -- but race is not an appropriate standard to apply on a class basis. The contention that the racial quotas imposed by the Director have a benign design to correct the wrongs of the past misses the point. As a matter of wisdom no one can quarrel with the overall purpose. It is the method which is pernicious. It is the racial classification irrespective of qualification that mandates its ...