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Shaner v. Horizon Bancorp.

Decided: August 10, 1989.


On certification to the Superior Court, Appellate Division

For affirmance -- Justices Clifford, Handler, O'Hern, Garibaldi and Stein. For reversal -- None. The opinion of the Court was delivered by Handler, J.


[116 NJ Page 434] Mahlon R. Shaner, plaintiff, was fired by Horizon Corporation (Horizon), defendant, at the age of fifty-three after working for the corporation for approximately eight years. Shaner claimed that he was discharged because of age. He sued Horizon, asserting wrongful discharge on federal and state statutory grounds, namely, in violation of the Federal Age Discrimination and Employment Act of 1967 and the New

Jersey Law Against Discrimination, as well as on grounds involving the violation of a clear mandate of state public policy. He sought compensatory monetary damages, interest, attorney fees and punitive damages. The defendant denied these allegations, maintaining the plaintiff was an employee at-will and was fired for just cause.

Defendant moved for partial summary judgment, seeking to limit the plaintiff's cause of action to his claim under the state Law Against Discrimination. The trial court granted the motion and dismissed with prejudice the plaintiff's federal claim and his claim of wrongful discharge in violation of state public policy, leaving only the state statutory claim. The trial court then granted defendant's motion that plaintiff's demand for a jury trial on that claim be denied. Following a non-jury trial, the court ruled that plaintiff's discharge was not based on discrimination because of age under the Law Against Discrimination.

Plaintiff appealed, challenging the pretrial order dismissing his claim for a jury trial and the court's determination on the merits. The Appellate Division affirmed both rulings. Plaintiff filed his notice of appeal as of right to this Court. Defendant filed a motion to dismiss the appeal as of right, which this Court denied. The sole issue raised by the plaintiff and before the Court is whether the plaintiff has a constitutional right to a jury trial on his claim for wrongful discriminatory termination on the basis of age under the New Jersey Law Against Discrimination.


The case comes to us on constitutional grounds. It is based on article I, paragraph 9 of the New Jersey Constitution of 1947, which provides that "[t]he right of trial by jury shall remain inviolate." Nevertheless, while plaintiff insists that his right to a trial by jury is constitutional, his cause of action is based on the Law Against Discrimination, which raises initially

the question whether the statute itself expressly or by necessary implication confers the right to trial by jury.

The New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 to 10:5-42 (LAD), was first enacted in 1945. It implements the Constitution, which provides:

No person shall be denied the enjoyment of any civil or military right, nor be discriminated against in the exercise of any civil or military right . . . because of religious principles, race, color, ancestry or national origin. [ N.J. Const. of 1947 art. I, para. 5.]

The Law Against Discrimination provides with greater specificity the following:

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

a. For an employer, because of the race, creed, color, national origin, ancestry, age, marital status, sex . . . to refuse to hire or employ or to bar or to discharge or require to retire, unless justified by lawful considerations other than age, from employment 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.]

It is this provision that specifies the substantive right that is the basis for plaintiff's cause of action.

The purpose of the LAD is to ban discrimination "because of race, creed, color, national origin, ancestry, age, sex, marital status or because of . . . liability for service in the Armed Forces of the United States." N.J.S.A. 10:5-3. The LAD, N.J.S.A. 10:5-4, pronounces that "the opportunity to obtain employment" constitutes a "civil right." Fuchilla v. Layman, 109 N.J. 319, 332 (1988). "The clear public policy of this State," reflected in the LAD, "is to abolish discrimination in the work place." Id. at 334; Castellano v. Linden Bd. of Educ., 79 N.J. 407 (1979). The LAD is concerned with more than the individual victim of discrimination. It recognizes that "discrimination threatens not only the rights and proper privileges of the inhabitants of the State but menaces the institutions and functions of a free democratic State." N.J.S.A. 10:5-3, quoted in Fuchilla, supra, 109 N.J. at 334-35.

The LAD contains distinctive substantive and procedural standards that serve to define discrimination causes of action. [116 NJ Page 437] These standards not only enumerate the matters that can entail invidious discrimination, such as, in this case, age, but also deal with the critical elements of motive and intent and the effects of discrimination not only on the person claiming to be victimized but also on those similarly situated. See, e.g., Goodman v. London Metals Exch. Inc., 86 N.J. 19, 30 (1981). In the context of employment, these standards aid the victims of discrimination by creating a presumption of invidious motive or intent if the claimant can show that an employment practice of the employer has a significant discriminatory impact. Id.; Peper v. Princeton Univ. Bd. of Trustees, 77 N.J. 55, 84 (1978); see also Andersen v. Exxon Co., 89 N.J. 483, 499-500 (1982) (in handicap-discrimination cases, motive or intent is presumed on showing that claimant is handicapped but capable of doing the job, thus shifting to employer the burden of justifying its treatment of claimant). These standards have been influenced markedly by the experience derived from litigation under federal anti-discrimination statutes. See Peper v. Princeton Univ. Bd. of Trustees, supra, 77 N.J. at 81 (adopting procedures formulated in McDonnell-Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973), for litigation under Title VII, 42 U.S.C. ยง 2000e-5 (1982)). The LAD's special procedural provisions are designed to identify the existence of discrimination and to encourage the initiation of grievances based on such discrimination. See Fuchilla v. Layman, supra, 109 N.J. at 345. The procedures accord broad rights of discovery. Dixon v. Rutgers, The State Univ., 110 N.J. 432 (1988). They also provide requirements to expedite the resolution of grievances arising from invidious discrimination. These not only serve to vindicate the wrongs suffered by individuals but are designed to discourage and eradicate discrimination in its most pervasive forms. These procedures relate to pleadings, N.J.S.A. 10:5-13, 10:5-16, notice to the Division and parties, N.J.S.A. 10:5-13, 10:5-15, conciliation, N.J.S.A. 10:5-14, and time limitation on actions, N.J.S.A. 10:5-18.

The key to the LAD is the remedial authority it confers on the Director of the Division on Civil Rights. The Director is empowered to invoke comprehensive remedies that are commensurate with the Law's overarching purpose of eradicating discrimination. N.J. Builders, Owners & Managers Ass'n v. Blair, 60 N.J. 330 (1972) (Director has broad power to adopt rules that rationally fulfill Division's responsibilities); see also David v. Vesta Co., 45 N.J. 301 (1965) (upheld Legislature's broad exercise of powers to outlaw housing discrimination through LAD). N.J.S.A. 10:5-17 sets out the available remedies that the Division of Civil Rights may order if the Director finds that an employer engaged in unlawful discrimination.

If, upon all evidence at the hearing, the director [of the Division of Civil Rights] shall find that the respondent has engaged in any unlawful employment practice or unlawful discrimination as defined in this act, the director shall state his findings of fact and conclusions of law and shall issue and cause to be served on such respondent an order requiring such respondent to cease and desist from such unlawful employment practice or unlawful discrimination and to take such affirmative action, including, but not limited to, hiring, reinstatement or upgrading of employees, with or without back pay . . . or extending full and equal accommodations, advantages, facilities, and privileges to all persons, as, in the judgment of the director, will effectuate the purpose of this act . . . [ N.J.S.A. 10:5-17.]

The administrative power to fashion remedies is as broad and flexible as needed to "comport[ ] with the preeminent social significance of [the LAD's] purposes and objects." The Passaic Daily News v. Blair, 63 N.J. 474, 484 (1973). "There can be no disagreement with the basic, oft-repeated precept that the Division on Civil Rights has far-ranging and comprehensive jurisdiction in the field of civil rights," and "[c]onsistent with this embracive authority, the Division has broad and flexible power to combat discrimination." Castellano v. Linden Bd. of Educ., supra, 79 N.J. at 417 (Handler, J., concurring in part and dissenting in part) (citing Jackson v. Concord Co., 54 N.J. 113 (1969); Fraser v. Robin Dee Day Camp, 44 N.J. 480 (1965); Jones v. Haridor Realty Corp., 37 N.J. 384 (1962); Levitt & Sons, Inc. v. Division Against Discrimination, 31 N.J. 514, appeal dismissed, 363 U.S. 418, 80 S. Ct. 1257, 4 L. Ed. 2d 1515

(1960)); see also Zahorian v. Russell Fitt Real Estate Agency, 62 N.J. 399, 409 (1973) ("statute vests the Director with remedial powers which have been broadly expressed legislatively . . . and have been broadly applied judicially."). Attorney's fees are also available as a remedy under the LAD pursuant to N.J.S.A. 10:5-27.1. This is a special form of relief designed to encourage those who seek to vindicate the individual as well as societal interests of overcoming discrimination in the exercise of civil rights. See Urban League of Greater New Brunswick v. Mayor & Council of Cranbury, 115 N.J. 536 (1989); Singer v. State, 95 N.J. 487 (1984).

It is significant that to the extent traditional legal modes of relief can be invoked in discrimination claims under the LAD, they have been applied in a manner that not only will provide individual redress and compensatory relief, but also will advance the broader societal purposes of the LAD. Thus, monetary awards under the LAD "seek[ ] not only to give redress to the individual who complains, but moreover to eliminate and prevent all such future conduct on the part of the [respondent] by enjoining further discriminatory practices as to all persons." Jackson v. Concord Co., supra, 54 N.J. at 124-25. Therefore, the Court has recognized that the Director's broad remedial powers can include the power to grant forms of legal relief such as compensatory damages, Jackson v. Concord Co., supra, 54 N.J. at 126, as well as incidental damages for pain and suffering or personal humiliation. Zahorian v. Russell Fitt Real Estate Agency, supra, 62 N.J. at 416. Nevertheless, the administrative award of monetary damages should not be "a primary item" of relief, id. at 413, but must be only ancillary to and correlated with the grant of broader remedies, which in combination are "reasonably calculated to eliminate the effects of the discrimination." Id. at 416 (paraphrasing Williams v. Joyce, 4 Or.App. 482, 479 P. 2d 513, 523 (1972) (interpreting an Oregon anti-discrimination statute similar to that of New Jersey)).

Consistent with its broad reach, the LAD confers on an aggrieved victim of discrimination the option of either filing an administrative complaint with the Director of the Division on Civil Rights or filing a civil action with the Superior Court. N.J.S.A. 10:5-13; see Fuchilla v. Layman, supra, 109 N.J. 319, 336; Sprague v. Glassboro State College, 161 N.J. Super. 218, 225 (App.Div.1978). These several remedies are complementary. While a claimant may pursue only one remedial route at a time, he or she may seek alternative or successive vindication. See, e.g., Hermann v. Fairleigh Dickinson Univ., 183 N.J. Super. 500, 504-05 (App.Div.), certif. den., 91 N.J. 573 (1982).

The right to bring a judicial action as an alternative to administrative relief, as exercised by plaintiff in this case, was expressly authorized by a 1979 amendment to the LAD, L. 1979, c. 404. It specifically provided that

[a]ny complainant may initiate suit in Superior Court under this act without first filing a complaint with the division or any municipal office. Prosecution of such suit in Superior Court under this act shall bar the filing of a complaint with the division or any ...

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