*1 COMPLAINANT-RESPONDENT, CASTELLANO, SANDRA EDUCATION, BOARD FRANK MANNUZZA LINDEN OF TARANTO, AND AMERICO RESPONDENTS-APPEL LANTS. Argued April 9, November 1978 Decided *2 Yale (Messrs. Mr. cause argued appellants Manoff Dielz, Mr. David Paul Weinberg, attorneys; Manoff Priclesen, on the brief). Gorrell, Mr. Joseph Attorney General, M. Deputy argued Division on the cause for and the Civil respondent Rights John J. General of New Degnan, Attorney Jersey, {Mr. General, Ms. L. Gonley, Attorney Prmimie Deputy attorney; of counsel). the court delivered by J. This is a civil case. rights complainant,
Sullivan, em- Castellano, married, Sandra is a tenured school teacher of Education She (Board). Linden Board ployed by a on became birth to child August pregnant gave birth, informed she During August prior her after the Board of her wish resume duties teaching (She her confinement. was certified as physician being However, the Board 1974.) do so able leave of one-year her to take absence maternity required denied her accumulated sick apply and also' request her absence due to childbirth. leave to a collectively nego- The Board’s was bottomed on position Educa- tiated between the Board and Linden agreement for a mandatory tional Association provided for a A tenured teacher.1 of the separate provision with sick leave and the ac- agreement dealing allowable cumulation thereof did not refer to absence on account of pregnancy. October
On 1974 Mrs. Castellano complaint filed the Division of Civil that she was Rights alleging being discriminated on account of sex. against During .pendency 9, 1974, the Board, on December hearing, permitted to return to her complainant duties. teaching The Director of the Division of Civil after Rights, found that Board’s of a manda- plenary hearing, policies tory leave, one-year maternity and refusal to allow pregnant teacher to use her accumulated sick leave for her absence due to childbirth, against complainant discriminated because of her sex and were in New “Law Jersey violation *3 Against Discrimination,” N. J. A. et The seq. S. 10:5-1 Director, in addition to the declaring foregoing policies practices unlawful, to $3,557.10, be awarded her complainant loss of 1974 December 1974.2 pay to She was “humiliation, also awarded $600 for damages pain mental The suffering.” Director’s order included specific “cease and desist” to provisions ancillary the affirmative relief ordered. Division, in a Appellate comprehensive opinion,
N. J. Super. 350 the (1978), affirmed Director’s decision and order with the exception thereof. That paragraph that for paragraph required any leave for provision agreement provided 1The the teacher could return to work at year following the commencement of the next school termination pregnancy, succeeding her or the commencement of next the school year subject thereafter, approval. Board to provides “Further, 2We note that the Director’s order also the Respondents may Complainant’s credit sick accumulated time with days (16) (after payment pay).” sixteen has she received of back period days represents complainant If the 16 was disabled follow ing days child, charged against birth should of her be her accumulated sick leave. child care include male well as female employees, vacated, Attorney conceding subject General 11 was of the case. beyond scope matter paragraph 77 N. J. 485 Court. granted by Certification was in note we sub to our comment Subject agree underlying Division stantially Appellate ruling affirmance for its except as set forth in its reasoning opinion, for “humilia complainant of the award $600 we agree While tion, and mental suffering.” do that the proofs award of full back we conclude pay, the $600 award. support maternity mandatory Board, applying policies acting utilization, and sick leave was unquestionably
leave incorporated faith contractual pursuant provisions good the Board between in a agreement collectively negotiated Eailure on and the Linden Association.3 Educational could agreement Board’s the terms of such to abide part labor unfair of an have Board to claim subjected the practice. as follows. award is
The evidence to support had written to the Super In 1974 complainant August him her She pregnancy. intendent Schools advising be for the ready opening informed him that intended to she absent temporarily school in but would September, communication, child’s birth. response received letters from the Superintendent complainant Schools and the counsel contractual referring Board’s sick leave. She notified provisions *4 that the Board had leave of absence granted maternity 1974 to “Best wishes for June blessed event” were The child was the coming expressed. born on 29, 1974. August subject dispute matter of involved 3Sinee these contractual
provisions, the should Linden Division have invited the Educational present legality provisions. Association to views as to the such At the civil was asked rights hearing complainant about reaction to these letters. Her answer was: personal —upset it, I First couldn’t X this was believe couldn’t believe Upset. happening Stayed me. I saw basis for this. no Cried. in the house for a while. She then asked she was and answered: why upset, something happen I Because didn’t think that like could this me. way people me; just I was afraid of the would react the whole — thing, just upset the whole me. you cry Did on Q. one occasion or more than one on occasion? No, many. A. long period you say upset How Q. would lasted? couple weeks, guess. A. I Oh On cross-examination that she complainant acknowledged had known all along about the contractual concern- provision However, and sick leave. she said she ing “because ease.” depressed of this husband Complainant’s also-testified that his wife became “very after he to her a upset” related conversation he had in Superintendent Schools August regard- her return to work. ing
We the award is not But we recognize substantial. are with funds and a which acted dealing public public body faith in accordance with contractual good provisions own negotiated complainant’s representative. evidence adduced at hearing support award is nebulous. There was no basis any feeling humiliation on complainant’s leaves of part. Maternity absence of one kind or another are we commonplace. While that a uphold mandatory ruling one-year maternity leave without and without allowance pay for use of accumu lated sick leave is we discriminatory, are unable to find in record substantial basis for for “humilia compensation tion, and mental addition to the award of suffering,” full back pay. *5 Board that the affirmance argues Appel-
Defendant herein late of discrimination is Division sex finding to another of panel Appellate the decision contrary Education Haddonfield, in Gilchrist v. Board Division of of 155 N. J. We find decisions to Gilchi'ist, In the contract of non-tenured distinguishable. her school teacher was not renewed she had notified because of her delivery Board Education of pregnancy expected in late The for the non- early October. basis renewal of her disability contract was that prospective from a firm and absence school would interfere with Board The of instruction without policy continuity interruption. Gilchrist, Division, that no dis- Appellate holding shown, crimination based on sex had been that emphasized and absence disability Board’s was not limited policy absence from but resulting applied anticipated pregnancy duties, for reason. any substantial duration teaching Id. at 368-369. Gilchrist, Division found in
Concededly, Appellate continuity Board’s classroom instruction policy rational basis for nonrenewal of the In teaching contract. case, the instant defendant Board for emphasizes need the justification of classroom instruction as for continuity a mandatory one-year leave. policy is We agree continuity concept legitimate However, for a Board to consider. it cannot be adhered goal teachers; at the of the civil blindly expense rights have mandatory leave policy one-year maternity may effect, been well intentioned. it purpose though, discriminates because of their It is against teachers sex. therefore and void. illegal of the use accumulated sick leave nonallowanee absence due to childbirth suffers from
during complainant’s fault. A woman to a same birth child becomes giving disabled and unable to attend physically teaching duties that reason. It to allow discriminatory her to use her accumulated sick during period when it can disability, be used other temporary any *6 due to disability. absence period physical of the Division The all Appellate judgment respects affirmed its allowance of except mental humiliation, That of the suffering. part is reversed. judgment J.,
Schreiber, I in the join concurring dissenting. that majority’s leave judgment mandatory maternity leave sick of the provisions agreement between Linden Board of Education and the Linden Education Association Law Discrimination, violated the Against S. A. et 10:5-l I seq. majority’s also agree determination the award for humiliation and concerning mental I with However, cannot its blanket suffering. agree approval Director’s order which in some significant far exceeds the respects issues which were presented.
The first indication of limited scope questions which were to be resolved be found in the may pleadings. The complaint verified filed Sandra Castellano with the Division on Civil that Rights she had been teacher alleged in the 1970, Linden school system since that she had given to a birth child on 1974, that she August had been pre- return pared to to the 1, 1974, classroom on October but that the Linden Board of Education had involuntarily placed her on leave of absence status until June 1975. It was because of her only sex that she had been prevented from to her returning duties. The Linden respondents Board of Education, Superintendent of Schools and President of the Board Education admitted all substantially the operative facts in the complaint, but denied any discrimination. husband, plaintiff, assistant superintendent and the superintendent schools were the only witnesses at before hearing the Division. The exhibits consisted the union contract and some correspondence between plaintiff and the school officials. facts were virtually undisputed. tenure, teacher with first school wrote
Plaintiff, grade 7, 1974 that of schools on August the superintendent late early come as “may September” birth of her child to be at her for the job intended at present she school; a short-term absence anticipated she opening with her and terminate accordance which would begin instructions; and that at the discretion of the obstetrician’s absence should treated as sick Board of Education the of absence without pay. leave as a leave temporary for sick because of the The Board denied leave request the Board of Education the contract between provisions It and the Linden Education Association. granted plaintiff of absence June 30, 1975 in XXII of the contract accordance Article *7 the which leave to terminate at com- required year mencement of the next school termination of following the pregnancy. 29,
Plaintiff’s child was born on August 1974. On October 1, 1974 wrote plaintiff superintendent the she able to return to work. enclosed She a confirmatory medical Her report. complaint Division on Civil Rights filed on October 1974.
Counsels’ their openings, the colloquies throughout proceed- and ing, summations were directed the validity Article XXII (maternity leave) and Article XIX (sick leave) the between the agreement Board of Education and the Linden Education Association. Exami- Hearing ner viewed the issues. principal His recommended award was based on fact and law findings conclusions of XIX that Articles and XXII of the agreement violated A. 10:5-12 and (a) 10:5-4, in Mrs. Castellano’s resulting damages.
The Director’s order went far the beyond issues framed the pleadings, in his expounded of Probable Finding Cause, developed the hearing, and Hearing resolved Examiner’s of fact findings and of law. In conclusions paragraphs of his ordering portion judgment, determined that the respondents Director were not to men women with between to life regard differentiate insurance, health temporary or insurance sick disability ot 4 he that: paragraph provided plans. Respondents employment will maintain no written or unwritten practice policy employment applicants or which or excludes employees pregnancy. because of record made on any No evidence was or of these presented matters. The had neither briefed nor parties argued them.
There should be a related sufficiently nexus between the orders of Director the issues which have been raised out tried Professor Davis proceedings. has stated to be general principle that “administrative guiding orders must be reasonably related to findings upon Davis, they rest and must avoid undue 1 K. breadth.” Administrative Law Treatise 8.19 at 603 In the § Co., NLRB v. opinion of leading Express Publishing U. S. 61 S. Ct. 85 L. Ed. (1941), United States Court laid Supreme down the rule basic ad an ministrative order agency’s
must, injunction court, like order aof state with reasonable specificity respondent the acts which the is to do refrain from doing. equally authority would It seem clear that conferred on practice employer the Board restrain the which it has found the authority generally committed an to have is not to restrain all other practices pursued unlawful which it has neither found to have been persuasively proven nor be related to the unlawful [ conduct. *8 433, 698, 312 61 S. Ct. at 85 Ed. at 936] U. S. L. Director has the been vested with
Though broadly stated J.N. 8. A. powers, 10:5-6 N. remedial and J. 8. A. 10: 5-17, steps the remedial which be may to required correct the conduct and insure improper compliance with to respect contemplate conduct reasonable relationship between the and the remedy Under the illegality. here, circumstances the Director exceeded limits sound discretion.
416 in gratuitous involved the problems
The nature of the inappropriateness demonstrates ordering paragraphs For example, prohibition such drawn orders. broadly an employment 4 a denial against ordering paragraph with would seem to conflict because of pregnancy applicant Ed., 358 Bd. 155 Gilchrist v. N. Haddonfield is majority approving Div. 1978), holding whose (App. rehire non-tenured the refusal In GilchHst today. a child during birth of contemplated teacher because she Law Against was held not violate year school that other con- showing in the absence of Discrimination result in like would not disqualifica- disabilities templated us. has been presented tion. The in Gilchrist not issue should Nor it before Division. question Nor there any Director’s order. have been resolved its place for this Court to justification stamp need or action. on that approval our Discrimina too, under Law
So, Against determinations plans life and sick tion insurance concerning due to sex should impact some differential may have basis of a record after vacuum, in a but on the resolved not an to discuss and argue had opportunity have parties Gilbert, 429 Electric v. General Co. the issue. Compare L. Ed. 401, (1976), Ct. 2d 125, U. S. 97 S. Aiello, Ed. 94 S. Ct. L. v. 417 U. S. Geduldig &Water Power Angeles Dept. with Los 2d 256 (1974), Manhart, Ed. 1370, 55 435 U. S. 98 S. Ct. L. 2d 4, 5 overbroad are my paragraphs opinion them. I would eliminate herein, stated I concur the majority than as Other affirm the judgment and I would modified. in this joins opinion except Justice Clifford determination majority’s con- approval expression for humiliation and mental the award suffering. cerning J., This Court has concurring dissenting. Handler, Castellano that Sandra ample justification concluded
417 found the Director of the Division on by Civil properly to have been the victim of sex-discrimination Rights contrary Discrimination, to the Law J. A. N. S. 10:5-l Against et The Linden Board of seq. Education discriminated against Castellano, teacher, Mrs. a tenured school by requiring to take a of absence for one mandatory leave without year or sick leave credit because birth of child. pay full Court finds sufficient warrant the Director’s to Mrs. Castellano. compensatory Yet, award damages of the Court would excise from inexplicably, majority — — award damages modestly set compensatory for the suffered Mrs. anguish unquestionably Castellano a result the Board’s conduct. I think the Court is and I therefore respect dissent wrong portion ruling. with the basic,
There can be no disagreement
oft-repeated
that the Division
Civil
has
Rights
on
precept
far-ranging
in the field of
Jack
jurisdiction
civil rights.
comprehensive
Co.,
J. 113
Fraser
son v. Concord
54 N.
v. Robin
(1969);
J.
44 N.
480
Jones v. Haridor
Camp,
(1965);
Dee Day
Sons,
N. J.
Levitt &
v.
37
384
Inc.
Realty Corp.,
(1962);
Discrimination,
Div.
31 N.
dismissed
Against
appeal
4 L. Ed.
80 S. Ct.
2d 1515 363 U. S.
the Division
authority,
with this embracive
has
Consistent
E.
flexible
to combat discrimination.
g.,
powers
broad
Blair,
N. J. 474
Passaic
News v.
63
Zahorian
Daily
(1973);
Estate
62 N. J.
Agency,
(1973);
v. Russell Fitt Real
Builders,
Blair,
&
Ass’n v.
60 N. J.
Managers
N. J.
Owners
Co., N. J.
David Vesta
301 (1965).
330 (1972);
arsenal of remedial
weapons
Division’s
Included
affix
injury
loss
authority
damages
consequent
of civil
This
deprivation
rights.
discriminatory
upon
for economic and
special
compensatory
encompasses
Co.,
Zahorian
supra;
Jackson v. Concord
see
loss.
pecuniary
Harvard v. Bush
Agency, supra;
Fitt Real
v. Russell
Estate
Bros.,
Div.
certif.
(App.
1975)
berg
It
(1976)
(dismissed
stipulation).
J. 493
71 N.
granted
*10
been,
as a remedial
recognized
has also
measure
in
area can
awarded for the
the civil
be
rights
humiliation,
of
embarrassment
the nature
suffering,
self-esteem,
the
by
of
often endured
victims of dis
loss
196,
e. Batavia
No.
g.,
crimination.
Lodge
Loyal
See
Order
Moose v. New York State Div. Human
N. Y.
Rights, 35
of
of
E.
143,
25,
359 N. Y. S.
316
318
App.
2d
2d
N.
2d
(Ct.
Inc.,
;
Anbro
2
86
493,
Alcorn v.
Cal. 3d
1974)
Engineering,
Cal.
P.
468
2d 216
Massachusetts
Rptr. 88,
1970);
Ct.
(Sup.
Franzaroli,
Commission Against Discrimination v.
357 Mass.
112,
The in the record a substantial compen- “unable find basis Ante ^humiliation, and mental at suffering’.” sation for was no basis for any feeling 411. It states that “[t]here because “[m]aternity part” on complainant’s humiliation commonplace”. one kind or another are of absence of leaves however, me, greater significance is of Id. It evidence of Mrs. Castellano’s think the Director did not fiction. majority’s contrary per The light humiliation that not has everyone the fact ceptions simply point up most subtle forms. discrimination, in its nose especially are of cultural products are to realize that people We coming of social recognition obscures conditioning frequently word, use the majority’s “commonplace”, The wrongs. Discrimi social constitute a horse of Trojan inequities. may undetected. because it is nation uncorrected goes frequently in the civil rights why responsibility This is governmental body has in an administrative is field been placed the keenness to see forms through to have expected where it exists. discrimination spot cultural blindness N. J. College, v. Trenton Countiss State Cf. Ed., Bd. Regional Matawan Hinfey v. (1978); And, it is for courts to why important this is assessments such administrative to the factual defer agencies. rationalizations of the other put
I do not find adequate any award rejection of the justify forward the Court faith Mrs. Board good in favor of Castellano. sanction; the award is not a punitive not a factor since is for Mrs. Castellano’s rather, compensation it modicum and diminishment hands personal chagrin Zahorian Russell Fitt Real Estate Agency, supra. Board. relevant; Board as a is not public body status are to the full subject strictures agencies governmental *12 Blair v. and Mayer the Law Discrimination. Council Against Freehold, Bor. J. Super. 117 415 Div. (App. 1971), N. of 60 N. J. 194 Bd. (1972); Galloway Tp. certif. den. cf. Secretaries, Ed. v. Ass’n Educational Galloway Tp. 78 J. Indeed, the Board was an affirmative N. under (1978). and to eliminate and avoid discrimination independent duty v. Hinfey within the school Matawan system. Regional Cf. Ed., Bd. supra. The inclusion in the negotiated teachers’ of the discriminatory provisions contract against expectant assuredly and new mothers no legal excuse for the Board’s actions. These were and provisions clearly invalid PFRC, unenforceable. W. Windsor 78 N. Tp. Cf. It follows that (1978). they could constitute grounds for unfair an labor practice reprisal, suggested by Ante at majority, especially view the Board’s own decision to -turn from the contract and Mrs. permit Castellano to resume her duties in the teaching early school year. sum, Castellano’s civil Board violated Mrs. rights. motives, its actions had rude
Regardless the Board’s was, in the reasonable judg- result Mrs. Castellano. She ment of the remedial Director, compensa- entitled to modest tion for I the understandable turmoil she could experienced. Division, not be who accord stronger Appellate with the same and of the record vantage perspective enjoyed us, found that there award. this ample support I would affirm extent, determination I To this sustaining damages. from the dissent and Court. judgment Justices and Clieeord join opinion. Pashman Hughes For Justice order —Chief affirmance of Mountain, Sullivan, Pashman Handler —5. Justices For reversal or order in Clieeord part —Justices Schreiber —2. Hughes For reversal damages Justice —Chief Mountain,
Justices Sullivan and Schreiber —4. Pashman, For Clieeord affirmance of —Justices and Handler —3.