Conford, Michels and Pressler. The opinion of the court was delivered by Michels, J.A.D.
We must decide whether an employer's policy prohibiting the contemporaneous full-time employment of relatives in the same department or terminal as applied to spouses is violative of the proscription against "discrimination because of marital status" set forth in the Law Against Discrimination, N.J.S.A. 10:5-1 et seq. The Director of the Division on Civil Rights (Division) found such a violation. We disagree and reverse.
The important facts may be summarized as follows. On May 25, 1972 respondent Irene Thomson (Thomson) applied to appellant Sanborn's Motor Express, Inc. (Sanborn), an interstate motor freight common carrier, for a full-time job as a general office clerk at Sanborn's truck terminal in Edison, New Jersey. The terminal manager informed Thomson that the position had already been filled, but that he would keep her in mind if another full-time position became available. He advised her that while there was a part-time billing clerk's position available, the company preferred a man for such night work. Thomson recommended her husband, and the terminal manager suggested that he apply immediately. Mr. Thomson was hired the next day as a regular part-time billing clerk on the night shift, working generally from 5 P.M. to 9 P.M. In November 1972, while Mr. Thomson was so employed, an opening developed for a part-time billing clerk on the day shift. The terminal manager offered the position to Thomson. He also told her that she would be given a full-time position when Sanborn opened another terminal in Edison and business improved. She [154 NJSuper Page 558] accepted the offer on that basis and was hired on November 6, 1972 as a regular part-time billing clerk working from 12 M. to 4 P.M. She was employed by Sanborn until September 4, 1973. She was discharged because of the company's policy against relatives, including spouses, working at the same terminal.*fn1
On October 16, 1973 Thomson filed a complaint with the Division charging Sanborn with unlawful discrimination for terminating her employment because of her marital status in violation of the Law Against Discrimination. The Director adopted the findings and conclusions of the hearing examiner that Sanborn had unlawfully discriminated against Thomson due to her marital status, in violation of N.J.S.A. 10:5-4 and N.J.S.A. 10:5-12(a); that Sanborn's "no relatives" policy placed a limitation on the advantages, privileges or opportunities for employment on the basis of marital status; that Sanborn had failed to justify the policy as a business necessity, and that Sanborn applied the policy more stringently to husbands and wives than to other classes of relatives. The Director ordered Sanborn to cease and desist from unlawfully discriminating against husbands and wives in employment. Thomson was awarded back pay of $5,300 plus compensatory damages of $500 for humiliation, pain and suffering.
Sanborn appeals. It contends essentially that the orders of the Director should be reversed because Thomson's discharge, based on its "no-relative" policy, did not constitute unlawful discrimination due to marital status within the meaning of N.J.S.A. 10:5-4 and N.J.S.A. 10:5-12(a) of the Law Against Discrimination.
The New Jersey Law Against Discrimination was amended in 1970 to include "marital status" as a proscribed basis for employment discrimination. L. 1970, c. 80, § 9 and § 14.
See Zahorian v. Russell Fitt Real Estate Agency , 62 N.J. 399, 410 (1973); Peper v. Princeton University Bd. of Trustees , 151 N.J. Super. 15, 23 (App. Div.), certif. granted 75 N.J. 24 (1977). N.J.S.A. 10:5-4 provides:
All persons shall have the opportunity to obtain employment, and to obtain all the accommodations, advantages, facilities, and privileges of any place of public accommodation, publicly assisted housing accommodation, and other real property without discrimination because of race, creed, color, national origin, ancestry, age, marital status or sex, subject only to conditions and limitations applicable alike to all persons. This opportunity is recognized as and declared to be a civil right.
N.J.S.A. 10:5-12(a), in pertinent part, provides:
It shall be an unlawful employment practice, or, as the case may be, an unlawful discrimination:
a. For an employer, because of the race, creed, color, national origin, ancestry, age, marital status or sex of any individual, or because of the liability for service in the Armed Forces of the United States, of any individual, to refuse to hire or employ or to bar or to discharge from employment such individual or to discriminate against such ...