On certification to the Superior Court, Appellate Division, whose opinion is reported at 173 N.J. Super. 249 (1980).
For modification -- Chief Justice Wilentz, and Justices Sullivan, Pashman, Clifford, Schreiber, Handler and Pollock. Opposed -- None. The opinion of the Court was delivered by Handler, J.
This is a civil rights case that calls for an examination of the nature and scope of the statutory remedial powers of the Director of the Division on Civil Rights under the Law Against Discrimination, N.J.S.A. 10:5-1 et seq. The appeal focuses upon the power of the Director to award remedial relief in the form of promotion and retroactive seniority on behalf of three public employees in order to rectify employment discrimination practiced upon them on account of their sex, contrary to N.J.S.A. 10:5-12(a).
Plaintiffs, Geneva Terry, Edith Savage and Helen Papp, were employees of the defendant Mercer County Youth House, a public facility which houses male and female juveniles awaiting judicial disposition of their cases by the Juvenile and Domestic Relations Court of Mercer County. The plaintiffs were employed by the Youth House in the position of Girls Supervisor. Terry and Savage were first hired in 1957, and Papp (since deceased) was hired in 1961.
Girls Supervisors have always been female while their counterpart, Boys Supervisors, have always been male. This distinction
based on sex was an intentional practice on the part of the County since each group of supervisors was responsible for the general supervision of juvenile inmates of the corresponding sex, as well as other duties such as dispensing medicine, maintaining logs, and escorting inmates to educational and health facilities. In addition, the Girls Supervisors performed certain duties on a regular basis that were not required of the Boys Supervisors, like laundry, washing, serving and helping cook in the kitchen. The only other major duty performed by supervisors involved being placed in charge of the institution during the absence of the Superintendent of the Youth House. However, in practice, the Superintendent would designate only the senior man on each shift for this duty. Consequently, plaintiffs, as Girls Supervisors, never assumed those responsibilities, although their individual seniority and, presumably, their job experience were greater than that of the males who were placed in charge.
In 1972 the Department of Civil Service, pursuant to its regular statutory responsibilities, reviewed employment positions in Mercer County and undertook to identify the different public positions at the Youth House. It determined that there were three distinguishable job categories, Boys Supervisors, Girls Supervisors, and those placed in charge of the institution during the absence of the superintendent, referred to as "Senior Boys Supervisors." These positions were classified accordingly. Thus, the position of Senior Boys Supervisor was formally created at this time. Under the civil service classification, Senior Boys Supervisors are responsible for "running the institution in the absence of the Superintendent, viz., proper filling out of medication forms, incident sheets, attendance sheets, meal count, and the transportation of juveniles to appointments." The Civil Service Department also established that one of the requirements for the job of Senior Boys Supervisor was one year's service as a Boys Supervisor, following the settled practice of the County.
The County did not fill this newly classified position immediately but instead relieved Boys Supervisors from the extra
duties and responsibilities that had led to the new classification of Senior Boys Supervisor. Sometime later, however, provisional appointments to the new positions were offered to all Boys Supervisors who had one year or more experience, these appointments to be permanent once the appointees had passed the appropriate Civil Service exam.
The first Civil Service exam for the permanent position of Senior Boys Supervisor was held in 1974 and, in accordance with the civil service specifications for the position, which reflected and codified the restrictions that had been placed upon the job by the County, only Boys Supervisors were eligible. After this examination, the provisional appointments of Senior Boys Supervisors were certified in 1975.
Following these certifications of the male supervisors, plaintiff Terry, on May 22, 1975, and plaintiffs Papp and Savage, on July 24, 1976, filed complaints with the New Jersey Division on Civil Rights charging that the Mercer County Youth House was discriminating against them on the basis of sex, since, as Girls Supervisors, they had not been given provisional appointments or the opportunity to take the civil service exam for the permanent position of Senior Boys Supervisor. After the filing of the civil rights complaints, a second civil service exam was held in 1977. The Civil Service Department determined that women in the Youth House had not had any opportunities for promotion (i.e., no Senior Girls Supervisor position had been created) and included women on the list of eligibles for the second test for the Senior Boys Supervisor position. The plaintiffs took the test and finished one-two-three.*fn1
The civil rights action of the plaintiffs proceeded to a hearing in the Division on Civil Rights. The hearing examiner in the Division assigned to the case found that the Youth House had
discriminated against the three women. He recommended that the women receive (1) back pay for the wage differential between their salaries and that paid to men performing a similar job for a period of 180 days prior to their complaint, and (2) additional pay for the promotions that they would have received had it not been for discrimination. It was also recommended that humiliation damages be awarded to the women and that the Youth House be ordered to "cease and desist" from discriminatory wage scales and unequal assignments of duties on the basis of sex in the future.
The Acting Director of the Division on Civil Rights affirmed the findings of discrimination, but modified the recommendation by adding the following remedies: (1) the back pay award was extended beyond 180 days, to the date of the June 1970 statutory amendments that added sex to the list of prohibited classifications under the Law Against Discrimination; (2) back pay was awarded for extra duties performed by the women which were not required of the men; (3) the plaintiffs were to be appointed to the first available supervisory positions; and (4) when appointed, the women were to be entitled to seniority in the supervisory position equal to that of the senior male now holding such a position.
The Appellate Division affirmed the Division's finding of discrimination and the remedies which were ordered with the following exceptions: (1) it vacated the Director's order to the extent it could otherwise be understood to allow women to be Boys Supervisors and men to be Girls Supervisors; (2) it vacated the order that the plaintiffs be assigned to the first available supervisory positions, and (3) it vacated the order for retroactive seniority. 173 N.J. Super. 249 (1980).
On May 30, 1980, the Attorney General, representing the Division on Civil Rights, filed a petition for certification with this Court. It challenged the decision of the Appellate Division insofar as it disallowed the promotion and seniority remedies ordered by the Acting Director. No cross-petition was filed.
This Court granted certification on July 21, 1980. 85 N.J. 122 (1980).
The issues posed by this appeal are constricted by the specific challenges presented in the Attorney General's petition for certification. The first question therefore is whether the Acting Director's order that the defendant must offer to the plaintiffs the next available vacancies in the position of Senior Boys Supervisor, or, simply, Senior Supervisor, pursuant to the authority delegated to him under N.J.S.A. 10:5-17, is invalid, as determined by the Appellate Division. That court believed that the Director's mandatory promotional remedy was invalid because it circumvented the civil service statutory "rule of three," N.J.S.A. 11:22-16, thereby improperly infringing upon the discretion of the hiring authority, and, in addition, because it constituted a form of "reverse discrimination." 173 N.J. Super. at 254. The Appellate Division seemingly viewed the Director's ...