On certification to Superior Court, Appellate Division.
For reversal -- Chief Justice Hughes, Justices Sullivan, Clifford, Schreiber and Handler and Judge Conford. For remandment -- Justice Pashman. The opinion of the court was delivered by Conford, P.J.A.D. (temporarily assigned). Pashman, J., concurring in part and dissenting in part.
Trenton State College ("College") appeals, on grant of certification, 75 N.J. 529 (1977), from a judgment of the Appellate Division affirming a decision of the Division on Civil Rights finding the College guilty of sex discrimination in having denied a tenure-reappointment to Joyce R. Countiss, an instructor in physical education. The decision granted Countiss damages for lost earnings and ordered her to be restored to the faculty at the College with tenure. At the end of her second year as an instructor (June 1972) Countiss had been informed by the administration that she would not be granted tenure at the conclusion of her third year because of lack of a "terminal [doctorate] degree or any extraordinary compensatory qualities."
The rationale of Countiss's purported case of sex discrimination is based upon the following assertions of fact. She was engaged in 1970, and, in addition to some teaching, she was designated coach of the women's basketball and softball teams at the College. Coaches of team sports were accorded "released time" from a uniform teaching load of 12 credits a semester for their coaching duties. By virtue of administrative policy all men's teams were coached by men and women's teams by women. During the time-frame here pertinent, 1970-1971 and 1971-1972, women coaches received
release time credit for coaching on a quarterly basis and men on a semester basis. The women coaches complained about this as discriminatory, and the system was made uniform (on a semester basis) after Countiss was terminated. The practical operation of the system insofar as coaches of men's and women's basketball teams was concerned was that the men received five credits a semester (during the entire semester) for basketball even though the coaching duties did not occupy the whole of either the fall or the spring semester. The women (Countiss) received four credits, but only during the second and third quarters of the school year, this on the supposed basis that women's basketball coaching duties required time only during those quarters. Thus, on an averaged annual basis, the men were receiving released time credit of ten hours and women only four hours.*fn1 Claiming that the overall expenditure of time in coaching and incidental duties (recruiting, scouting, etc.) did not vary substantially as between men and women coaches, Countiss asserts that allowing the men's basketball coaches ten credits of released time a year and her only four such credits was discriminatory. From that position, the asserted thesis is that the time left to pursue graduate work was insufficient to enable Countiss to make the "significant progress" toward the doctorate by the end of her second teaching year which the administration indicated would have been required to qualify her for tenure.
Countiss made alternative contentions of sex discrimination. One was that on a national basis only one-third of all holders of doctorates in health and physical education were women; the other, that in the college's department there were in 1972 thirteen male coaches, of whom eleven were tenured and seven female coaches, of whom four were tenured. None of the tenured coaches had doctorates. We dismiss both of these allegations of sex discrimination summarily
as without even prima facie merit. Cf. Pace College v. Com'n Hum. Rts., etc., 38 N.Y. 2d 28, 377 N.Y.S. 2d 471, 478, 339 N.E. 2d 880, 884 (Ct. App. 1975); Townsend v. Nassau County Medical Center, 558 F.2d 117, 120 (2 Cir. 1977), cert. den. 434 U.S. 1015, 98 S. Ct. 732, 54 L. Ed. 2d 759 (1978). We need only note, in connection with the latter contention, that the administrative policy for requiring doctorates or substantial progress thereto began to develop only in 1970. Further, the fact that four women coaches were previously tenured without doctorates tends to show the College had no prior sex bias in awarding tenure.
The College's defense at the hearing in the Division of the differences in allocating release time as between men and women coaches was that men coaches had more time-consuming responsibilities in scouting other teams and in recruiting student-athletes than the women coaches and that the men's sports seasons were longer. However, no evidence was offered in these regards except for basketball coaches and seasons. Moreover, it was established that the men's season was only two weeks longer than the women's and that Countiss was required to coach both the women's junior varsity and the varsity basketball teams in her second year and attend all their games while the men coaches had assistant coaches for the men's junior varsity team. Although the men's team played more regular season games, the women's played post-season championship games which required Countiss's attendance.
The College offered in evidence responses to questionnaires submitted by men and women basketball coaches as to the amount of time actually entailed by coaching duties. Countiss's response was 421 hours while each of the two men coaches returned figures in excess of 1200 hours. These responses covered only a single year and were obtained for purposes of meeting a U.S. Labor Department investigation
prompted by Countiss's complaint concerning the disparate release time system. There was only generalized corroboration of these unsworn figures; they could easily have been exaggerated, and the hearing officer was warranted in giving them limited weight.
Among other findings of fact by the hearing officer in the Division was one that "discrimination was * * * perpetrated * * * in creating adverse work schedules for women." In similar vein, the Director of the Division found that Countiss was discriminated against in respect of the heavier work load under the policy on release time. We agree with the Appellate Division that consideration of the record as a whole justifies the conclusion that there was sufficient credible evidence to sustain the finding of the Division that Countiss was discriminated against in respect of work load because of the disparate rules as to release time for men and women coaches. Jackson v. Concord Co., 54 N.J. 113, 117-118 (1969). Although there was no finding of discriminatory intent on the part of the college, and the differences in release time were purported to be related to the sex of the teams rather than of the coaches, the fact remains that all coaches were of the same sex as the athletes coached and that all women coaches were subjected to the discriminatory quarterly system of release time as compared with the more favorable semester system for the men. The degree of disparate treatment was not shown to be justified by any educational ("business") considerations, and the "impact" of the disparate treatment is such as to categorize the resulting discrimination as based on sex regardless of absence of invidious intent. See Int'l Brotherhood of Teamsters v. United States, 431 U.S. 324, 335, n. 15, 97 S. Ct. 1843, 52 L. Ed. 2d 396 (1977); Peper v. Princeton University, 77 N.J. 55 (1978).
Notwithstanding our holding in I, above, we are unable to agree with the consequential decision of the
Division, affirmed by the Appellate Division, that the College be ordered to reinstate Countiss with tenure.
Preliminarily, there has been no evidence in this case, nor any finding, that the responsible authorities had not in good faith arrived at the conclusion by the spring of 1972 that either a doctorate or significant progress thereto was an important factor for consideration in passing upon an award of tenure to any instructor in the health and physical education department of the College as to whom the doctorate would be the terminal degree.*fn2 There is uncontroverted evidence in the record that this policy was applied without any discrimination as to sex in and after 1972. The fact that a formal declaration of that policy was not published until 1973 is immaterial. So is the fact that Countiss was not expressly notified of the policy when engaged. The evidence is clear that the policy was publicized during her tenure and she could properly be expected to have put herself on inquiry of it. In sum, it is indisputable that the denial of tenure to Countiss was on the merits of her application and not based on her sex.
Consequently, we are confronted with the unassailable fact that when the decision as to tenure for Countiss was made in June 1972 she was not in compliance with a major requisite for tenure, absent other extraordinary professional qualities or activities which she was deemed by the Administration not to possess. The Division of Civil Rights found that the discriminatory policy as to release time had "made it more difficult for the Complainant to meet 'the significant progress toward a doctorate' standard" of the College than it would have been ...