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Kiss v. Department of Community Affairs

Decided: November 14, 1979.


On appeal from final decision of the Civil Service Commission.

Bischoff, Botter and Dwyer.


This is a case of alleged employment discrimination in which petitioner charges the Department of Community Affairs (hereafter Community Affairs) refused to hire her as a principal planner in the local planning unit because of her sex. Both parties agree that petitioner meets all the educational and experience requirements of the position, and that she achieved the highest score of all candidates who took the required qualifying Civil Service examination.

On the two Civil Service certification lists at issue, dated February 19, 1976 and August 18, 1976, respectively, petitioner ranked first, but with respect to the February 19, 1976 list, she was bypassed in favor of a male Community Affairs employee and was bypassed as to the August 18, 1976 list by two lower-ranking males with work experience allegedly superior to petitioner's. The bypassing of petitioner, despite her placement at the top of the lists, was the result of the Department's exercise of the "Rule of Three," N.J.S.A. 11:10-6. That rule permits the appointing authority to select from among three top-ranking individuals on a certified list. McGlinchey v. Martin , 12 N.J.Misc. 188, 189, 170 A. 848 (Sup.Ct.1933). See, also, N.J.S.A. 11:22-16; Marranca v. Harbo , 41 N.J. 569, 576 (1964). When the Rule of Three is exercised the appointing authority must submit to the Department of Civil Service (hereafter Civil Service) a statement of the reasons for the appointment and must certify under oath that it is not based on discriminatory motive. N.J.S.A. 11:10-6.1. We assume, although the record does not so indicate, that Community Affairs complied with N.J.S.A. 11:10-6.1.

Petitioner was interviewed once, after publication of the August 18, 1976 list by McGuirk, head of the local planning unit, and was recommended for "further consideration," meaning she qualified for the position. She was rejected by Goldberg, the Administrator of the Department, who had observed her during his prior acquaintance with her. Kiss later filed a complaint

with the Civil Service Commission Affirmative Action Office, alleging sex discrimination in hiring by Community Affairs.

At a hearing on the complaint, the hearing officer decided that Goldberg was the most credible of the witnesses and that petitioner's rejection was based on a proper exercise of the Rule of Three -- not on improper discriminatory motives. The hearing officer's findings and conclusions were adopted by the Civil Service Commission. Petitioner then filed this appeal alleging, as she did below, that she was passed over because of sexual bias; that she had been questioned improperly during the employment interview about her marital status, and that Community Affairs evidenced a policy of sex discrimination in employment. A preliminary inquiry is whether petitioner's claim of sex discrimination should be determined by reference to the Law Against Discrimination, N.J.S.A. 10:1-1 et seq. , as petitioner contends, or under the Rule of Three, N.J.S.A. 11:10-6 et seq. , as respondent contends. Respondent argues that because petitioner filed her claim with Civil Service rather than with the Division of Civil Rights, Civil Service law controls and it has no jurisdiction or duty to enforce the Law Against Discrimination.

We believe Civil Service misconstrues its role. Respondent's reasoning appears to be that Civil Service, and by implication Community Affairs, are not subject to the Law Against Discrimination. That reasoning contravenes the statute which clearly states:

It shall be an unlawful employment practice, or, as the case may be, an unlawful discrimination:

a. For an employer, because of race . . . or sex of any individual . . to refuse to hire or employ . . . such individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment . . .. [ N.J.S.A. 10:5-12.]

N.J.S.A. 10:5-5(e) defines employer:

"Employer" includes all persons as defined in subsection a. of this section unless otherwise specifically exempt under another section of this act, and includes the

State, any political or civil subdivision thereof, and all public officers, agencies, boards or ...

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