Plaintiff William Jones was allowed to be added by the pretrial order dated December 16, 1976 and so his corresponding claims will reach back to December 15, 1970 but not before.
The present Director, Joseph H. Lerner, was added as a defendant by amendment filed October 16, 1978. As to him, such claims of both parties reach back to October 15, 1972 but not before assuming he was in office then.
In the case of the claims under 42 U.S.C. 2000e (the Civil Rights Act of 1964) the basic claim arises from the definition of what is an "unlawful employment practice for an employer", 42 U.S.C. § 2000e-2(a). The provisions for mechanisms to prevent unlawful employment practices are found in § 2000e-5. Charges are to be filed within 180 days of the alleged unlawful practice, with EEOC; but if the matter begins with a proceeding filed with a local agency of the same kind as EEOC, then the time for filing with EEOC is either 300 days after the alleged unlawful practice, or within 30 days after notice that the local proceeding has terminated, whichever is earlier; idem, par. (e). Assuming these time limitations with EEOC are satisfied, then the person aggrieved may file a civil action (either in a US District Court or a State court, see Peper v. Princeton, 77 N.J. 55, 389 A.2d 465 (1978); and if the Attorney General (US) has not filed a civil action in a case involving a government or governmental agency within 180 days of the filing of the charge with EEOC, the person aggrieved is to be so notified, and may bring the civil action within 90 days after the notice.
McNeil filed his Title VII charge with EEOC on May 25, 1974, and was issued a right to sue letter under date of March 4, 1976. Complaint was filed May 28, 1976, within 90 days, and can reach back 180 days before the EEOC filing, or to November 26, 1973.
Jones filed his EEOC complaint February 18, 1975 (P-36). His "right to sue" letter from the Department of Justice is dated October 1, 1976, and if received the same day, the 90 days would have expired December 31, 1976. He was joined as plaintiff on December 16, 1976 and so his claim under 42 U.S.C. § 2000e is not barred by limitations. His claim can reach back to 180 days before February 18, 1975 (EEOC filing date), or to August 22, 1974.
The amendment removing the exemption of state and local governments from Title VII had an effective date of March 24, 1972, and alleged violations after that date may be asserted, subject to the applicable limitations. See the Equal Employment Opportunity Act of 1972, Pub.L.No. 92-261, 86 Stat. 103.
The Immunity Question
The complaint, as amended, names as defendants the present director of the ABC and three former directors (McDonough, Bowers and Ronco), individually and as Directors, plus the "State of New Jersey Division of Alcoholic Beverage Control."
From the legislative history outlined above, there can be no doubt that insofar as the ABC is itself named as a defendant, the State of New Jersey is effectively named. The ABC is a division within the Department of Law and Public Safety, headed by the Attorney-General, and one of the principal departments in the Executive Branch. The employer is the State itself. Plaintiffs are state employees in the unclassified service. This fact being undeniably so in light of the structure of state government as reflected in its local Constitution and statutes, it follows that the only claims for money damages that plaintiffs can assert against the State are those coming within 42 U.S.C. § 2000e, et seq., because the 1972 amendment contained a Congressional waiver of the State's immunity from suit under Amend. 11, through the exercise of its legislative power to implement Amend. 14 under § 5 thereof. Thus, no monetary claim can be asserted against the State under 42 U.S.C. § 1981, et seq., because for those statutes there has been no waiver of sovereign immunity, either by Congress or by the State. See: Monroe v. Pape, 365 U.S. 167, 81 S. Ct. 473, 5 L. Ed. 2d 492 (1961), as modified by Monell v. Department, etc., 436 U.S. 658, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978); Parden v. Terminal Railway Co., 377 U.S. 184, 84 S. Ct. 1207, 12 L. Ed. 2d 233 (1964); Edelman v. Jordan, 415 U.S. 651, 94 S. Ct. 1347, 39 L. Ed. 2d 662 (1974); Fitzpatrick v. Bitzer, 427 U.S. 445, 455, 96 S. Ct. 2666, 2671, 49 L. Ed. 2d 614 (1976); Cannon v. University of Chicago, 441 U.S. 677, 99 S. Ct. 1946, 60 L. Ed. 2d 560 (1979); Chapman v. Houston, etc., 441 U.S. 600, 99 S. Ct. 1905, 60 L. Ed. 2d 508 (1979); and the analysis in Skehan v. Board, etc., 590 F.2d 470 (CA3, 1978).
Of course, if a case is made out on the merits, the 11th Amendment does not stand in the way of prospective injunctive remedies to the extent they are otherwise warranted.
The Substantive Law
As the decisions in this evolving field of employment discrimination seem to indicate, the substantive law is essentially the same without regard to whether the claim is asserted under 42 U.S.C. § 1981, et seq., or under Title VII, 42 U.S.C. § 2000e, et seq.
In terms of "essential elements" that must be established, of course, these will vary with the applicable statute. Thus, under 42 U.S.C. § 1981, the sole issue is "race", i. e., whether the claimant has been deprived of the same enumerated rights "as are enjoyed by white persons." Under 42 U.S.C. § 1983, the issue is whether the claimant, as a citizen of the United States, has been subjected under color of local law to the deprivation of any rights, privileges or immunities secured by the federal Constitution and laws. Under 42 U.S.C. § 2000e, et seq., the denounced grounds of treatment which make an employment practice unlawful are those based on race, color, religion, sex, or national origin. See 42 U.S.C. § 2000e-2.
In the case of non-federal employment (which now embraces traditional "private sector" employment as well as employment by a non-federal government, government agency, etc.) a further distinction is made by 42 U.S.C. § 2000e-5(f)(1) in respect to prerequisites to suit. For strictly private sector claims, it is EEOC which can file suit or issue a 90-day right to sue letter. For state government and state agency claims, that function is assigned to the Attorney General (Department of Justice).
Regardless of what the forbidden criteria are under a given statute, it seems well recognized that four elements must be shown to make out a prima facie case of discrimination:
1. the claimant falls into one of the forbidden categories, as may be applicable under the particular statute involved;