Fritz, Botter and Ard. The opinion of the court was delivered by Ard, J.A.D.
Complainant, a nontenured teacher, filed a verified complaint with the New Jersey Division on Civil Rights alleging that the Board of Education of the Borough of Haddonfield, Camden County (Board), "discriminated against her in that they denied her the opportunity to continue her employment because of her pregnancy.' In answering, the Board asserted the defenses of lack of jurisdiction, absence of any substantive statutory violation and "business necessity.'
The Board also filed a complaint in the Chancery Division of the Superior Court of New Jersey seeking to enjoin complainant and the New Jersey Division on Civil Rights from proceeding, on the grounds that the matter in dispute was a question arising under the school law and exclusively within the jurisdiction of the Commissioner of Education. Simultaneously with filing suit in Chancery, the Board also filed a petition of appeal with the Commissioner of Education of New Jersey naming complainant and requesting the Commissioner of Education to determine whether the facts of the matter constitute a wrongful denial of reemployment.
The parties entered into a stipulation of dismissal with respect to the Chancery action, and the Department of Education took the position that it would not move the matter because the Department's own rules prevented it from proceeding while a prior filing was pending before another administrative jurisdiction of the State Government.
After a hearing in the Division on Civil Rights the Director adopted the recommendations of the hearing examiner and found that the Board had discriminated against complainant on the basis of sex. The Board was ordered to (1) cease and desist from doing any act prohibited by N.J.S.A. 10:5-1 et seq.; (2) not maintain a written or unwritten employment policy or practice which excludes from employment applicants or employees because of pregnancy; (3) not discriminate between men and women with regard to medical, hospital, accident, life insurance or retirement benefits or any other term, condition or privilege of employment; (4) treat disabilities caused or contributed to by pregnancy, miscarriage, abortion, child birth and recovery therefrom as other temporary disabilities under any health or temporary disability insurance or sick leave plan available in connection with employment; (5) not present any proposal for negotiation with employee organizations which treat disabilities related to pregnancy differently from any other temporary disability; (6) not maintain or enforce any policy or practice for the removal of any tenured or nontenured teacher from her teaching duties which is based solely on the fact of pregnancy; (7) grant leaves of absence for medical reasons associated with pregnancy and birth on the same terms and conditions governing leaves of absence for other illnesses or medical disabilities; (8) made accumulated sick leave time available to teachers who suffer disability on account of pregnancy on the same terms as all other types of disability, and require the same type of physician's certificate for pregnancy as is required for other disabilities; (9) include male as well as female employees in any contract provision now in force which provides leave for child care; and
specifically: (a) credit complainant with 12 sick days and 3 personal days which would have accrued to her benefit during the 1975-76 school year, and (b) pay complainant back pay of $9,900 less the necessary amounts for state pension program and federal withholding, and, in addition, $400 as incidental compensatory damages for pain, suffering and humiliation; (10) offer complainant reinstatement to the first vacant full-time teaching position which is available for the 1976-77 school year, and (11) provide complainant with credit of two years of teaching towards tenure.
The Board appeals, urging the following:
(1) The Division on Civil Rights lacks jurisdiction over the complaint where the sole allegation is one of discrimination on the basis of the complainant's pregnancy;
(2) If sex discrimination is determined to include action by the Board because of pregnancy, a complaint of such discrimination does not fall within the jurisdiction of the Division on Civil Rights, and the exclusive jurisdiction is with the Commissioner of Education;
(3) The determination and order of the Director of the Division on Civil Rights should be reversed, and
(4) Even if a statutory violation were sustained, the complainant would not be entitled to compensatory damages or other relief granted because she was not prepared to resume her full-time position during the school year in question and because she did not attempt to fully mitigate damages.
There is little disagreement between the parties concerning the important facts of the case. Complainant began working for the Haddonfield School System in September 1973 and continued through two successive school years, terminating in June 1975. She became aware she was pregnant in February 1975, and upon a superior's inquiry in April 1975, advised the school authorities she expected to have the baby in late September or October 1975. She had already been informally advised that her contract was to be renewed although she had not yet been tendered a formal written agreement.
Although she was told by the assistant superintendent "that there would be no problem' when she first advised him of her pregnancy, two days later the superintendent of schools stated that her contract would not be renewed because her absence the following school term would interfere with the Board's policy "promoting the continuance of education without interruption.' It was made clear to her that the decision was because of her absence and not because of her teaching abilities.
Further evidence was adduced that this information caused her some emotional upset and physical discomfort.
There was also evidence that complainant had been absent for a period of over two weeks in a prior year without complaint from her superiors. This absence was occasioned by a back condition. It was demonstrated that each teacher receives 12 sick days and 3 personal days a year which are cumulative and may be utilized in the event of illness or disability. The complainant testified she would have had available to her in October 1975, the scheduled time for the delivery of her baby, a total of 16 days of permitted absence. It was her personal experience, as well as her observations of the experiences of others, that a prolonged absence because of sickness or disability, beyond the allotted leave time available to the individual, was handled by deducting the additional lost time from the employee's salary. This option was not afforded the complainant, and at the end of the 1974-75 school year she received a letter from the Board (marked Exhibit "B') advising her that her contract would not be renewed for the next school year because "the delivery by you of a child in October of 1975 will occasion an unwarranted interruption in the continuity of the children's classroom instruction. To the extent possible, the Board's policy is to minimize any interruption in classroom instruction, whatever the reason.'
There was further testimony that complainant sought fulltime employment in the school year ...