On certification to the Superior Court, Appellate Division.
For affirmance and modification -- Chief Justice Wilentz and Justices Pashman, Handler and O'Hern. For reversal -- Justices Clifford, Schreiber and Pollock. The opinion of the Court was delivered by O'Hern, J. Schreiber, J., dissenting. Justice Pollock joins in this opinion. Justice Clifford joins in all except Part IV of this opinion.
This is the first time we have addressed the provisions of the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 et seq., relating to physically handicapped persons. The issues involve (1) a definition of physical handicap within the meaning of the act, (2) the standards for determining whether an employer reasonably arrived at its opinion that an employee was unable adequately to perform the duties of the job, and (3) the proper allocation of the burden of proof in handicap discrimination cases.
In October 1973, Leif E. Andersen applied to Exxon Company, U.S.A. (Exxon) for the job of nighttime nonregular heating oil driver, a seasonal job lasting approximately six months. The job required filling and driving a large oil truck and delivering heating oil to Exxon's customers. The trucks that were used for this purpose held approximately 3,000 gallons of heating oil and were usually filled twice per night. The driver had to load the truck at Exxon's facilities by climbing onto the top of the truck, opening the fill cap and pulling down and inserting the loading arm into the filler on the truck. Although the loading arm
weighed 50 to 60 pounds, it was "spring loaded" and was not difficult to lower. According to Exxon's testimony, the more difficult maneuver was lifting the arm back out of the filler.
Once the truck was loaded, the driver was to service various delivery sites. At each site he would have to find the fill location, throw the front end of the hose over his shoulder and drag the hose from the truck to the fill location. Although the truck carried 100 feet of hose, the distance from truck to fill location averaged 40 to 50 feet. The nozzle of the hose weighed five pounds, and each foot of hose, when filled with oil, weighed about 1.3 pounds. After delivery, the hose would be wound up by means of a motorized return. Approximately 25 to 30 deliveries were made per night.
When complainant applied for the job with Exxon, he met Sullivan, the personnel manager, who advised Andersen that he was qualified and probably would be hired, but that he would have to go to an orthopedic examiner, Dr. Joseph Butenas, for a preplacement physical examination. Dr. Butenas was not an employee of Exxon but rather was a private physician whom Exxon used occasionally on a fee basis. Andersen went to Dr. Butenas for examination. In his medical history form, Andersen disclosed that he had had an operation for removal of a spinal disc and fusion in 1960. After the examination, Butenas marked the square on Andersen's medical report indicating that the applicant had an abnormal spine and back, and that Andersen was "not recommended for employment." Complainant testified, without contradiction, that during the examination he was asked simply to raise his hands and bend over and touch his toes. He stated that Dr. Butenas told him he could not be hired because of his previous back operation and that people with back problems would not be hired.
Upon receipt of Butenas' report, Exxon's manager, Sullivan, called Dr. Ira Langdon, Exxon's Regional Medical Director in Maryland. Langdon told Sullivan that Andersen should not be hired based upon Butenas' recommendation. Langdon and
Butenas never spoke to one another concerning Andersen, nor did Langdon ever examine Andersen. Sullivan told Andersen he would not be hired because of his back. No one disputes the fact that Andersen was otherwise qualified for the job.
Andersen filed a complaint with the Division on Civil Rights in January 1974 alleging employment discrimination on the basis of physical handicap. The Director of the Division on Civil Rights entered a finding of probable cause on December 27, 1976.
A hearing before an Administrative Law Judge was held in October 1979. The evidence at the hearing included the testimony of Andersen, Langdon and Sullivan, the report and deposition of Dr. Willner (Andersen's orthopedic surgeon and brother of the doctor who performed his 1960 operation), the report of Dr. Butenas, and a computer printout of complainant's driving record. Dr. Butenas did not testify.
Dr. Willner's 1975 report disclosed that Andersen had made a good recovery from the 1960 surgery, enabling complainant to resume strenuous delivery jobs unloading soda cases and hardware goods weighing in excess of 50 pounds for at least eight prior years. The doctor stated in his report:
Some patients have restricted . . . activity secondary to this type of trouble. Some people return to full activities. . . . The success rate is good. In his particular case, Mr. Andersen was apparently extremely good. . . . I certainly wouldn't encourage this patient to lift objects above 100 pounds. I certainly would not advise this patient to engage in activity where he would have excessive twisting of his trunk. Otherwise all activities would be permissible to him, in my opinion.
On December 27, 1979, the Administrative Law Judge found that in 1973 Andersen was physically handicapped within the meaning of the act, otherwise qualified for the job, and not reasonably precluded by his physical condition from performing the duties of a nonregular heating oil driver. He concluded that the company had discriminated against Andersen by refusing to hire him solely because he had a physical handicap.
On February 25, 1980, the Director of the Division on Civil Rights issued his findings, determination and order, in which he adopted the Administrative Law Judge's initial finding of discrimination.
On Exxon's appeal, the Appellate Division affirmed the Director's decision. The court held that Andersen had proved that he had the experience, education, intelligence and skills needed to do the job, and that he did not have to show that he was physically able to do the job because disputing that "is the employer's burden once a prima facie case is established.," The court also found that Exxon had not reasonably arrived at the conclusion that complainant was physically unable to perform the job assigned. This Court granted Exxon's petition for certification. 87 N.J. 373 (1981).
Employment discrimination due to sex, race or any other invidious classification is peculiarly repugnant in a society that prides itself on judging each individual by his or her merits. Peper v. Princeton University Board of Trustees, 77 N.J. 55, 80 (1978). New Jersey has had a law against discrimination since 1945. Law Against Discrimination, L. 1945, c. 169. It declared the opportunity to gain employment without discrimination because of race, creed, color, national origin, ancestry, age, marital status or sex to be a civil right of our citizens and recited that such discrimination menaces the foundations of a free democratic state. N.J.S.A. 10:5-3; N.J.S.A. 10:5-4.
Since 1972, the Law Against Discrimination has prohibited discrimination in employment based on physical handicap. L. 1972, c. 114. In signing the legislation, Governor Cahill said:
It will restore the physically handicapped citizens of this state to their rightful dignity as valuable and contributing members of the labor force and will allow them to benefit from the same employment opportunities as their more fortunate neighbors. . . . Not only will handicapped individuals benefit from this important legislation, but society as a whole will be enhanced through the contributions of this newly vitalized segment of the population.
Amending the employment discrimination provisions of N.J.S.A. 10:5-12(a), the Legislature declared:
All of the provisions of the act to which this act is a supplement shall be construed to prohibit any unlawful discrimination against any person because of the physical handicap of such person or any unlawful employment practice against such person, unless the nature and extent of the handicap reasonably precludes the performance of the particular employment. [ N.J.S.A. 10:5-4.1].
Our Court has repeatedly emphasized the strong public policy of New Jersey against employment discrimination. In Jackson v. Concord Company, 54 N.J. 113, 124 (1969) (racial discrimination in housing), we encouraged effective agency enforcement action "in order to eradicate the cancer of discrimination." In Peper v. Princeton University Board of Trustees, supra, 77 N.J. at 80 (alleged sex discrimination against a female employee), we observed that "New Jersey has always been in the vanguard in the fight to eradicate the cancer of unlawful discrimination of all types from our society." And, in Goodman v. London Metals Exchange, Inc., 86 N.J. 19, 30-31 (1981), we found that "[t]he Legislature has given the Law Against Discrimination a special niche in the legislative scheme. . . . The law is aimed at fulfilling provisions of the state constitution guaranteeing civil rights. N.J.S.A. 10:5-2."
In Peper and Goodman we adopted the methodology of McDonnell Douglas Corporation v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973) as a starting point in actions brought under the Law Against Discrimination. Peper, supra, 77 N.J. at 83; Goodman, supra, 86 N.J. at 31. The McDonnell Douglas approach established the elements of a prima facie case of unlawful discrimination. The plaintiff must demonstrate by a preponderance of the evidence that he or she (1) belongs to a protected class, (2) applied and was qualified for a position for which the employer was seeking applicants, (3) was rejected despite adequate qualifications, and (4) after rejection the position remained open and the employer continued to seek applications for persons of plaintiff's qualifications. 411 U.S. at 802, 93 S. Ct. at 1824, 36 L. Ed. 2d at 677 (footnote omitted). Establishment
of the prima facie case gives rise to a presumption that the employer unlawfully discriminated against the applicant. The burden of going forward then shifts to the employer to rebut the presumption of undue discrimination by articulating some legitimate, nondiscriminatory reason for the employee's rejection. Goodman, supra, 86 N.J. at 31; Peper, supra, 77 N.J. at 83. The plaintiff then has the opportunity to prove by a preponderance of the evidence that the legitimate nondiscriminatory reason reason articulated by the defendant was not the true reason for the employment decision but was merely a pretext for discrimination. Goodman, supra, 86 N.J. at 32. In such cases the ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff; only the burden of going forward shifts. Ibid. In a physical handicap case, the basic task is not discerning the reason for the discrimination, since that is generally conceded, but rather examining the reasonableness of the decision under the facts. With these principles in mind, we turn to the specific issues of this case.
Exxon first contends that the complainant failed to prove that he was physically disabled within the meaning of New Jersey's act. It walks a fine line to assert in one breath that the complainant suffers no physical disability and in the next breath that he cannot drive an oil truck by reason of physical infirmity. Since our forms of pleading permit such inconsistencies, we need not pursue this dialectic further. R. 4:5-6.
We agree with Exxon that complainant has the burden of proving that he was physically handicapped at the time that he applied for the part-time employment with Exxon. Panettieri v. C. V. Hill Refrigeration, 159 N.J. Super. 472, 482 (App.Div.1978); see Peper, supra, 77 N.J. at 82-83.
The definition of physical handicap as contained in the New Jersey statute at the time this case arose*fn1 is as follows:
Physical handicap means any physical disability, infirmity, malformation or disfigurement which is caused by bodily injury, birth defect or illness including epilepsy, and which shall include, but not be limited to, any degree of paralysis, amputation, lack of physical coordination, blindness or visual impediment, deafness or hearing impediment, muteness or speech impediment or physical ...