On appeal from Adoption of Regulations By The New Jersey Casino Control Commission.
Approved for Publication June 5, 1995.
Before Judges Landau, Conley and Newman. The opinion of the court was delivered by Conley, J.A.D.
The opinion of the court was delivered by: Conley
These consolidated appeals have been brought by three advocacy groups for the handicapped, the Handicapped Advocates for Independent Living (H.A.I.L.), the Disability Information Awareness and Living (D.I.A.L.), and the Mental Health Association in New Jersey, Inc., and David Esposito, a handicapped individual. The appeals involve a challenge to the current regulations promulgated by the Casino Control Commission in N.J.A.C. 19:53 pursuant to N.J.S.A. 5:12-134 and -135. The regulations implement fairly substantial equal employment and affirmative action requirements for women and racial/ethnic minorities but only minimal requirements for the handicapped. As they apply to the handicapped, the new regulations represent a significant reduction of such requirements as had been required under the prior regulations. Although appellants originally included in this appeal a challenge to the absence of any quotas or hiring goals for the handicapped, appellants advised us during oral argument that, at the present time, they do not seek the imposition of such goals. As all acknowledge, while the establishment of goals and hiring quotas is discretionary pursuant to N.J.S.A. 5:12-135, information that is not presently available may render the exercise of that discretion appropriate.
Given appellants' present position, however, we do not address that issue here and address the alleged deficiencies in the current regulations within the context of all but the specific requirements for goals established for women and racial/ethnic minorities. Appellants here challenge on statutory and constitutional grounds the under-inclusiveness of the current regulations as they apply, or more to the point, do not apply to the handicapped.
We conclude that within the context of the Commission's exercise of its interpretative and regulatory authority over N.J.S.A. 5:12-134 and -135, the removal of the handicapped from the scope of the Commission's previous rather inclusive equal employment opportunity and affirmative action requirements was arbitrary, unreasonable and without sufficient basis. We remand to the Commission for promulgation of new regulations for the handicapped and direct the Commission, either through its Advisory Board or itself, to take whatever steps it deems necessary to obtain and compile whatever necessary statistical data it needs to determine what is required for the promulgation of such regulations. We caution, however, that it is not within the province of the Commission to determine that there is presently no underemployment in the casino industry of the handicapped obviating the need for anything other than the passive equal employment opportunity requirements that the current regulations impose for the handicapped. That determination has already been made by the Legislature.
N.J.S.A. 5:12-134 provides that all casino industry applicants and licensees:
... shall formulate for commission approval and abide by an affirmative-action program of equal opportunity whereby the applicant guarantees to provide equal employment opportunity to . . . members of minority groups qualified for licensure in all employment categories, including the handicapped, in accordance with the provisions of the "Law Against Discrimination" P.L. 1945, c. 169 (C.10:5-1 et seq), except in the case of the mentally handicapped, if it can be clearly shown that such handicap would prevent such person from performing a particular job.
[N.J.S.A. 5:12-134(c), emphasis added].
Similarly, N.J.S.A. 5:12-134(b) provides that the Commission shall not issue any license to a casino or a casino service industry "who has not agreed to afford an equal employment opportunity to all prospective employees in accordance with an affirmative-action program". N.J.S.A. 5:12-135 expressly empowers the Commission to, among other powers, "investigate and determine the percentage of population of minority *fn1 groups in the State or in areas thereof from which the work force for the licensee is or may be drawn" and to "establish and promulgate such percentages as guidelines in determining the adequacy of affirmative action programs submitted for approval pursuant to [5:12-134]."
It is through N.J.A.C. 19:53 that the Commission has implemented the requirements of, and exercised the discretion delegated by, N.J.S.A. 5:12-134 and -135. Regulations were initially promulgated in 1978. While they established hiring goals only for women and racial/ethnic minorities, *fn2 the regulations otherwise included the handicapped in what can be considered fairly progressive equal employment affirmative action requirements. Pursuant to repealed 19:53-1.3 and 1.4, for instance, licensees were required to insure that casino contractors and subcontractors had affirmative action programs covering handicapped persons as well as women and racial/ethnic minorities. Section 1.5 set out affirmative action requirements for applicants and licensees including the requirement that handicapped persons be "recruited and employed at all levels of the workforce," and that a licensee employing more than fifteen employees send "notices of employment openings, opportunities, training programs or pre-employment tests" to organizations serving the interests of the handicapped. N.J.A.C. 19:53-1.5(a)(5), repealed. Section 1.6 required that gaming schools submit reports showing the composition of the student body in terms of protected groups, including handicapped persons; and send notices concerning their enrollment policies to organizations serving the interests of the groups protected under the Act.
Consistent with these provisions, the repealed rules had included a statement describing the long-term "public policy" of the State "to promote equal employment opportunity by prohibiting discrimination and by implementing affirmative action programs ... to achieve a balanced workforce." N.J.A.C. 19:53-1.1(a), repealed. In accord with this "policy", Section 1.1(b) described the regulations as establishing "affirmative action program requirements" and "procedures for achieving compliance with these affirmative action program requirements."
During the public hearings on the new regulations, statistical data was presented indicating that the handicapped were "seriously under-represented in the [casino industry] workforce." *fn3 Key to this data is a calculation of the number of disabled employees in the casino industry. The only figure available is the Commission's. While the Commission conceded that number is not accurate and admitted that it had not enforced the prior reporting requirements concerning the number of handicapped persons in the workforce, resulting in "meaningless" reports, its response has been to ...