On certification to Superior Court, Appellate Division, whose opinion is reported at 158 N.J. Super. 350 (1978).
For affirmance of order -- Chief Justice Hughes and Justices Mountain, Sullivan, Pashman and Handler. For reversal or order in part -- Justices Clifford and Schreiber. For reversal of damages -- Chief Justice Hughes and Justices Mountain, Sullivan and Schreiber. For affirmance of damages -- Justices Pashman, Clifford and Handler. The opinion of the court was delivered by Sullivan, J. Schreiber, J., concurring and dissenting. Justice Clifford joins in this opinion except for its expression of approval of the majority's determination concerning the award for humiliation and mental suffering. Handler, J., concurring and dissenting. Justice Pashman and Clifford join in this opinion.
This is a civil rights case. The complainant, Sandra Castellano, is a married, tenured school teacher employed by the Linden Board of Education (Board). She became pregnant and gave birth to a child on August 29, 1974. During August and prior to the birth, she informed the Board of her wish to resume her teaching duties after her confinement. (She was certified by her physician as being able to do so as of September 27, 1974.) However, the Board required her to take a one-year maternity leave of absence and also denied her request to apply her accumulated sick leave to her absence due to childbirth.
The Board's position was bottomed on a collectively negotiated agreement between the Board and the Linden Educational Association which provided for a mandatory maternity
leave for a tenured teacher.*fn1 A separate provision of the agreement dealing with allowable sick leave and the accumulation thereof did not refer to absence on account of pregnancy.
On October 17, 1974 Mrs. Castellano filed a complaint with the Division of Civil Rights alleging that she was being discriminated against on account of sex. During the pendency of the hearing, the Board, on December 9, 1974, permitted complainant to return to her teaching duties.
The Director of the Division of Civil Rights, after a plenary hearing, found that the Board's policies of a mandatory one-year maternity leave, and refusal to allow a pregnant teacher to use her accumulated sick leave for her absence due to childbirth, discriminated against complainant because of her sex and were in violation of the New Jersey "Law Against Discrimination," N.J.S.A. 10:5-1 et seq. The Director, in addition to declaring the foregoing policies or practices to be unlawful, awarded complainant $3,557.10, her loss of pay from September 1974 to December 9, 1974.*fn2 She was also awarded $600 damages for "humiliation, pain and mental suffering." The Director's order included specific "cease and desist" provisions ancillary to the affirmative relief ordered.
The Appellate Division, in a comprehensive opinion, 158 N.J. Super. 350 (1978), affirmed the Director's decision and order with the exception of paragraph 11 thereof. That paragraph which required that any provision for leave for
child care include male as well as female employees, was vacated, the Attorney General conceding that the subject matter of paragraph 11 was beyond the scope of the case. Certification was granted by this Court. 77 N.J. 485 (1978).
Subject to our comment in note 2, we agree substantially with the Appellate Division ruling and underlying reasoning as set forth in its opinion, except for its affirmance of the award of $600 damages to complainant for "humiliation, pain and mental suffering." While we agree with the award of full back pay, we conclude that the proofs do not support the $600 award.
The Board, in applying its policies of mandatory maternity leave and sick leave utilization, was unquestionably acting in good faith pursuant to contractual provisions incorporated in a collectively negotiated agreement between the Board and the Linden Educational Association.*fn3 Failure on the Board's part to abide by the terms of such agreement could have subjected the Board to a claim of an unfair labor practice.
The evidence to support the $600 award is as follows. In August 1974 complainant had written to the Superintendent of Schools advising him of her pregnancy. She informed him that she intended to be ready for the opening of school in September, but would be temporarily absent for her child's birth. In response to her communication, complainant received letters from the Superintendent of Schools and the Board's counsel referring to the contractual provisions for maternity leave and sick leave. She was notified that the Board had granted her a maternity leave of absence from September 1, 1974 to June 30, 1975. "Best wishes for the coming blessed event" were expressed. The child was born on August 29, 1974.
At the civil rights hearing complainant was asked about her personal reaction to these letters. Her answer was:
First upset -- I couldn't believe it, I couldn't believe that this was happening to me. I saw no basis for this. Upset. Cried. Stayed in the house for a while.
She was then asked why she was upset, and answered:
Because I didn't think that something like this could happen to me. I was afraid of the way people would react to me; just the whole thing, the whole -- just upset me.
Q. Did you cry on one occasion or on more than ...