*1 COMPLAINANT-RESPONDENT, v. COUNTISS, R. JOYCE COLLEGE, TILLMAN DR. KENNETH TRENTON STATE RUNQUIST, RESPONDENTS-AP AND KENNETH C. DR. PELLANTS. April 25, Argued 1978. October 1978 Decided *2 General, Gibble, argued Attorney Ms. Sherrie L. Deputy Attorney John Degnan, cause for appellants (Mr. Conley, L. Erminie Mrs. Jersey, attorney; of New General General, counsel). Attorney Deputy the cause for Raymar respondent Robert S. argued Mr. Lindeman, attor- Siegal, Landau Hellring, (Messrs. . neys) court delivered by opinion
Conford, Trenton assigned). J.P. A. D. (temporarily certification, grant (“College”) 'appeals, State College *3 a of Appellate N. J. from the (1977), judgment 529 Bights a the Division on Civil decision of affirming in having of discriminatiоn sex College guilty finding Oountiss, an B. Joyce a tenure-reappointment denied The decision granted education. physical instructor her to be and ordered for lost earnings damages Oountiss with tenure. At College at the faculty restored to the 1972) instructor (June as an year her second of end that she the administration by been informed Oountiss had third at the conclusion not be granted would degree of a “terminal of lack because year [doctorate] compensatory qualities.” extraordinary any case sex of Countiss’s discrim- purрorted The rationale fact. She assertions of following ination based 1970, and, addition she teaching, to some engaged was coach of the women’s basketball and softball designated was Coaches of team were accorded sports at the College. teams a load from uniform “released time” for their duties. virtue of coaching By semester credits men all men’s teams were coached by administrative here teams women. time-frame During women’s women re- 1971-1972, coaches 1970-1971 pertinent, ceived release time credit for on a basis coaching quarterly men on semester basis. The women complained coaches about as this discriminatory, system and the was made uniform after (on basis) semester Countiss was termi- nated. The operation system of the insofar practical as coaches of men’s and women’s was basketball teams was concerned the men received five credits a semester (during entire semester) basketball even though coaching ¡either duties did the whole of fall occupy or the spring semester. wоmen four credits, received (Countiss) only but during the second and third quarters school year, this on the basis that women’s supposed basketball duties time coaching those required only during quarters. Thus, basis, on an annual the men averaged were receiving reléased time credit of women ten hours and four hours.1 the overall of time in Claiming expenditure coaching and incidental duties (recruiting, scouting, etc.) did men vary substantially coaches, between and women Countiss asserts that the men’s basketball allowing coaches ten credits released timе a and her only four such year credits was Erom that discriminatory. position, the asserted time thesis is left to pursue graduate work was insufficient Countiss to enable to make “significant prog- ress” toward the end of her doctorate second teaching administration year indicated would been have her for tenure. required qualify made alternative contentions of sex discrim a national basis
ination. One that on only one-third *4 in all doctorates health and physical holders education women; that in the other, were college’s department coaches, male there were 1972 thirteen of whom eleven coaches, seven female were tenured and whom four were None of the had tenured. tenured .coaches doctorates. We of sex dismiss both of these sum- discrimination allegations average comparative 1The loads an effect was for the year of ten hours for and seven for men coaches. College Pace merit. without even marily prima as facie Cf. Rts., etc., Y. 28, 38 N. Y. 377 N. S. 2d v. Com’n Hum. 2d Townsend 880, 1975); 884 (Ct. App. N. E. 471, 478, 339 2d Center, 117, (2 558 F. Cir. County Medical 2d v. Nassau 732, 54 L. Ed. 434 U. S. 98 S. Ct. cert. den. 1977), in connection with note, need only We (1978). 2d contention, administrative latter began thereto progress doctorates substantial requiring women that four Further, the fact in 1970. develop only tends without were tenured doctorates previously coaches tenure. awarding show the had no sex bias College prior I at The defense College’s men and between release time in allocating the differences time-consum- more men coaches had women coaches was in recruiting other teams in scouting responsibilities ming the men’s women coaсhes than the student-athletes offered was However, no evidence longer. were seasons sports and seasons. coaches for basketball these regards except season was Moreover, the men’s was established that and that Countiss than women’s weeks only longer two varsity and both the women’s junior to coach required attend year teams in her second varsity basketball men had assistant coaches all their coaches games while the men’s junior varsity Although for the men’s team. season the women’s games, played team more played regular which required Countiss’s championship games post-season attendance. responses offered in evidence College question- men and women basketball coaches as
naires submitted actually to the of time amount entailed duties. coaching was 421 hours while each of the two men response Countiss’s of 1200 figures coaches returned excess hours. These responses year covered and were single obtained a-U. Labor purposes meeting Department investigatiоn
595 the Countiss’s prompted by complaint concerning disparate release system. time corrobora- There was only generalized tion of these unsworn could have been figures; easily they exaggerated, the officer was warranted hearing giving them limited weight. other the officer in Among fact findings * * * the Division was one that “discrimination was perpe ** *
trated adverse work creating schedules for women.” In similar vein, Director of the Division that the found discriminated heavier against respect work load under the on release time. Wе agree Appellate Division consideration of record as that whole justifies the conclusion that there was sufficient credible finding evidence to sustain of the Division Countiss was discriminated of work load against respect because of rules as to disparate release time for men Co., and women Jackson v. 113, coaches. Concord 117-118 there was Although no dis (1969). finding intent on criminatory part of the college, and bp in release were differences time purported related to the sex of the coaches, teams rather than of the fact all coaches were of the remains same sex as athletes coached and all women coaches were subjected to the of release discriminatory quarterly system time as compared more system with the semester favorable men. The of disparate was not shown degree treatment to be justified any educational considerations, (“business”) and the “impact” treatment such disparate categorize discrimination as resulting based sex regardless of absencе of invidious intent. See Int'l Brotherhood of States, Teamsters United v. 431 U. 324, 335, 15, n. 52 L. S. Ct. Ed. (1977); 2d 396 v. Peper Princeton 77 N. J. 55 University, (1978).
II Notwithstanding our holding I, above, we are unable to agree with the consequential, decision of the *6 Division, College that
Division, affirmed by Appellate with tenure. be ordered to reinstate case, in this no evidence been has Preliminarily, there in had authorities not the responsible nor that any finding, of 1972 spring at the conclusion faith arrived good anwas thereto significant progress' either a doctorate or that an award in passing upon for consideration imрortant factor educa- physical in the health and any of tenure to instructor as whom doctorate of the to College tion department There is uncontroverted terminal degree.2 would be the this was without policy applied the record evidence that to in and after 1972. The fact any discrimination as sex a of that was not published formal declaration that until So is Countiss was immaterial. the fact that when notified of the policy engaged. expressly her was publicized during clear that the policy evidence is tо her- she be have put tenure and could properly expected sum, on In it is indisputable self it. inquiry of her denial of tenure to Countiss on the merits appli- cation and not based her sex. confronted with the unassailable fact we are
Consequently, as to for Countiss was made when the decision with a compliance major requi June 1972 she was extraordinary tenure, professional quali site for absent other ties or which she was deemed the Administration activities found Rights The Division Civil not to possess. n discriminatory policy as to releasе time “made more had meet the Complainant significant progress difficult for would standard” than it College toward doctorate’ have male We this an immaterial regard been for coaches. of an award by relation the Di finding propriety of a tenure reinstatement. vision very are significant (1) Two considerations in this regard: the declaration entitlement to tenure is highly discre- category. degree. in this She 2Countiss was had master’s tionary determination of trustees of vested the boards 18A:60-1; educational A. involved. N. J. S. institutions 18A:64-6; 18A:64-7; J. Col. Fac. v. Assoc. Stаte Dungan, 64 N. no substantial (1974); (2) causal relation her was established by Countiss between teaching and load and her failure have achieved coaching significant progress toward a doctorate end of sec by the ond year.
Dealing the first of considerations, foregoing in particular with the statutory Director authority of the Division in an appropriate case to take ac affirmative tion in an employment situation, discrimination such as *7 or "reinstatement of upgrading with or employees, without * * back pay see N. J. S. A. 10:5-17, it is obviоus that different considerations would in relation a apply college instructor denied tenure from those pertinent to one dis charged from an in ordinary job private employment. Rein stating latter would offend no counter consideration the public interest. But tenure to granting a teacher college found not qualified therefor by responsible administra tive authorities is plainly to sound contrary educational ad Wildwood, ministration. See Donaldson v. Bd. Ed. No. of of N. 65 J. 236, 241 (1974); Zimmerman v. Board Education of Newark, 38 N. J. 65, 73 (1962), cert. den. 371 U. 956, S. of 83 S. 508, Ct. 9 L. Ed. 502 2d In (1963). a com closely parable ease Chief Breitel, Judge for the New speaking York Court of Appeals, had the observations: following invade, Neither commission nor the courts should rarely except greatest oversight, assume caution academic with promo restraint, faculty appointment, in such areas as sensitive (cf. higher learning tenure, especially tion and in institutions of Rights, Technology New York Human Inst. v. State Div. 48 of of 132, app. granted 207, A. D. 2d 368 N. Y. 2d for lv. to 37 S. mot. 330; 1028, N. Y. 2d 2d Faro v. New 709. 375 N. Y. S. N. E. 2d 338 Univ., Cir., higher 1229, 1231-1232). York 2 F. 2d Schools of 502 learning fairly employees fungible all are nоt “businesses” where are (see, g., Div. Human unskilled or Rights workers e. State semiskilled of Mfg. Corp., 201, 209, v. N. 2d Kilian N. Y. 2d 360 Y. S. 35 603, 608, 770, supra). professional 773, 318 N. E. 2d aca- In a proper necessarily subjective judgments a have demic milieu * * legitimate *, role etc., Rts., N. Y. supra, on Hum. Pace Com'n College v. 2d at 339 N. 2d at 885. 478-479, E. reinstatement
It for us here decide is not necessary remedy an with could appropriate tenure never constitute leave for determina a We college may discrimination ease. direct situation, a for of example, tion case pertinent ap apparently qualified of a to an denial tenure appointment v. Brookdale Endress race, sex, because plicant of etc. Cf. 118, 109, 129-131 College, 144 Community Super. Pittsburgh, 435 Johnson v. Div. (App. 1976); University of v. 1353, 1977); F. Keddie D. Pa. Supp. (W. 1264, 1270 412 F. Pennsylvania University, Supp. State Ota, 1029, 1033 Francis v. 356 F. Supp. D. Pa. (M. 1976); Haw. (D. 1973). connec-
In the asserted case the tenuousness present tenure and claim inability qualify tion between work respect discrimination visited load, foundation for taken solid proven together toward College’s requirement significant progress thereof, laсk Countiss’s doctorate seekers and judgment spell clearly out mistaken exercise strongly reinstatement. a tenure awarding Countiss than terms (rather in absolute taken that, It notable *8 coaching of men treatment with the favorable comparison Coun- imposed load and coaching faculty), teaching the not the has equivalent, hours or tiss, to class equating — as rendering not certainly excessive been attacked as bur- courses. taken graduate for her to have impossible is teaching while degree toward a graduate den of working to the tenure, not peculiar all to heavy aspirants one for six to take manage did Countiss this complainant. case of notifica- semester, after one during classes of graduate hours teaching the same tenure, despite carrying denial of tion of have could she Although load as before. and coaching sessions pre-summer in each of the six credits achieved 1972 and in 1972, 1971 and she earned credits only three her attribution none in 1971. Of substantial is significance lack of of these than finances, deficienсies lack of rather to time. summer of She take in also failed courses the to in times the which up and fall 1970 and each of at to six credits could have been earned. in factual basis
We no conclude there was substantial Division that the credible the for the in proofs findings discrimina load (conceding Countiss’s teaching coaching a substantial torily favorable treatment of men coaches) in work factor to achieve failure the graduate would have enabled her to for tenure. qualify set forth circumstances,
In stated for the reasons hereinabove, of discretion it was a mistaken exercise plainly directed of Countiss for Division to have reinstatement at all). existed act power (assuming so differential token, the same By award of for damages and other salary between as a tenured instructor earnings must be vacated.3 earnings reversed; no costs.
Judgment J., concurring part and Pashman, dissenting part. The result herein announced inasmuch incomplete as it not does make whole by reim- she be providing that bursed for the heavier load, аs teaching/coaching compared male coaches, which she shouldered for three In years. addition, fails to majority address troublesome issue — in this case propriety examiner’s find- that a ing doctorate was the terminal not degree physical education, notwithstanding Iona belief of educators fide at Trenton State University that it was the terminal degree. Finally, I cannot accept majority’s implication do 3We pay” compensate remand award an of “back load, the differential as advocated the dissent. Such a claim has litigation, never been asserted Countiss in this regard dowe such action on the Court’s own motion as war ranted consideration of the case as a whole. *9 lack the order rein- may
Division on Civil Rights power contravenes N. suggestion with tenure. Such statement the Division author- 10:5-17, A. which explicitly grants has violated the any provisions to order who ity person * * * * * * ef- affirmative action will “take such Act to * * of this act fectuate purpose
I been the had found that Countiss hearing examiner work: of her victim of discrimination in scheduling * * * discriminated it wоrk was such [T]he schedule for coaches imposed made against greater them burdens women study complainant arrange time. doctoral difficult for the adopted Rights Division on Civil The Director that, went on to find above finding * * * Complainant by im- Respondents against discriminated un- posing on male teacher-coaches a heavier load on her than work coaching the Hear- discussed for der time release ing Examiner. basketball varsity men’s year, out over Averaged week, of classes hours had to teach seven cоaches Countiss, had to coach, basketball while the varsity women’s four for hours credit classes.1 She received teach ten hours of required per following 1The shows the hours of chart per year, at based on the fact these various times in the week varsity sons coached basketball. average By dividing four, adding figures number these per taught and seven hours week comes out to ten the men’s coaches. *10 of out of a teaching, hour required twelve week per load, dur- ing the second and third quarters school year when wоmen’s basketball was in season. The men’s varsity basket- coaches received five of credit over the entire ball hours year, even their season was at most two weeks though longer I than season. concur in women’s of the holding Court that this in work disparity load discriminated against Countiss on sex, the basis of see ante at 594-595 and would uphold that on of the Division Civil af- finding Rights as firmed Appellate Division.
However, the majority not address the consequences does of this of discrimination we act Countiss. Since against have found that Countiss, in work effeсt, longer was forced to hours than male discrimina- coaches of unlawful sex because extra be made whole tion, that she justice requires for this record, improper it would be work. On the present 'Countiss fix would reimburse an amount which Court to in a normally required that her work above and beyond this remand I therefore twelve-hour week. would amount to determine the ease to the on Rights Civil teaching responsi- heavier of back owed Countiss for the pay au- is remedy expressly her.2 Such imposed bilities that which mandates 10:5-17 J. A. N. 8. thorized Discrimination Law Against order violator Director limited not but action, "including, affirmative take such with or of employees, to, upgrading reinstatement hiring, * * * * * * the purpose will effectuate bach as pay without * * *” A. 10: Since added). (emphasis this act civil right, sex discrimination freedom from 5-4 makes whole such discrimination make the victim back pay consistent with the Act’s surely purpose. through pay 2Any the Commissioner remedies for back and all to Countiss. remain available Education II A troubling aspect of case, this ad- fully dressed by majority, is the examiner’s cоnclusion * “* * did respondents clearly establish the terminal degree for coaches is a doctorate.” This finding was not relied upon by the Director of the Division Civil he Rights, held such a validity even assuming requirement, discrimination time Coun- in release prevented *11 tiss from acquiring number credits toward of significant the doctorate. However, I examiner believe that the hearing acted improperly, in not given him, the record before adopt- the criteria ing for tenure set Trenton As College. State the majority points out in a different the considera- context, tions which apply with to for respect employ- qualifications ment or those promotion private employment ap- plicable ato instructor same. ante college are See not at 596-598.
The highly regulated of education sphere public is to a analogous private with factory various units. production Tenure requirements are more subjective because the needs of a particular department particular school are gen erally unique. Moreover, the commitment employment of made to a tenured member without faculty counterpart sector. private Thus, I only can conclude hear examiner ing erred in applying strict business necessity Co., test v. Griggs of Duke 434, Power 401 431-433, U. S. 91 S. Ct. L. Ed. 3d when (1971), judging Trenton propriety of selection State’s of the doctorate as terminal for degree members of the of Department Health and Physical Education.
It well known several the Chancellor years that for had Education Jersey Higher the New Department those to been state to doctorates urging collеges require fall of 1971 Moreover, whom tenure. in the granted they Teacher Edu- Directors of the National Association of State a serious need evaluators found cation team of Certification’s Depart- with doctorates in the members faculty additional to respect With Education. ment Health and Physical more need for program, masters department’s degree of these In light critical. deemed with doctorates was faculty in re- discretion abused his factors, examiner a doc- determination Trenton State’s fusing сredit for members of degree was the terminal torate proper Education. Health and Physical Department select is not competent Civil Eights The Division on matter for is a colleges. tenure criteria for That reject a doctorate selection of of educators. Since expertise was not department in Countiss’ as the terminal degree motive, discriminatory an to be bottomed on improper shown concern itself could Eights the Division on Civil valid of that non-discriminatory implementation assuring with Countiss’ I sympathize criterion for tenure. While her demonstrated despite frustration in receiving coach, improper would be equally teach and ability as it criteria for tenure the proper court to determine 'Civil Eights. be for the Division on would Ill *12 opinion majority dicta in the I am troubled the Lastly, not Eights may on Division Civil implies that the a act order to remedy college’s reinstatement with tenure of ante While such discrimination. See at 596-598. where it will only be and remedy must granted sparingly, is con- institution, harm the plainly not educational fol- The the Law Discrimination. templated by Against of Act make manifest the lowing provisions legislative intent: practices Legislature finds The and declares that of discrimination race, color, against any inhabitants, creed, of its because of national liability
origin, ancestry, age, sex, status, in marital service States, nationality, are a matter of Armed Forces of the United or government State, and that such discrimination concern to of proper privileges rights and of the inhabitants threatens aof free and foundation institutions State but menaces the » * * State; democratic 10:5-3] A. J. S. [W Safety Department There is and Public created of Law power Eights” division on with known “The Division Civil prohibited prevent and manner eliminate in the discrimination origin, creed, color, against persons race, national this act of because ^ * ancestry, age, marital or sex status 6] J. S. 10A. :5— IN. found, intended Legislature Where discrimination have remedial broad Rights Civil powers: If, find that all shall evidence at the the director respondent practice engaged any employment or has unlawful act, unlawful shall state discrimination аs defined in the director this findings and his of of shall issue cause fact and conclusions law and respondent respondent requiring served an to be on such order such employment practice or and un- to cease from unlawful desist such including, action, lawful and to take such discrimination affirmative employees, upgrading to, hiring, or but reinstatement limited any membership, pay, without back or restoration or equal organization, extending respondent accom- or and labor full as, facilities, persons, modations, advantages, privileges to all purpose judgment director, this will in the act, effectuate report including requirement of the manner com- * * * power reasonably pliance. use have the to' director shall catalogue list, including bases, or limited to market but not certain prices conditions, values, or or advertised terms or contract appropriate performance giving particulars to determine order remedy. A. 10:5-17 IN. added)] (emphasis Co.,
In Jackson v. Concord J. 113 this (1969), Court commented on the legislative in N. J. S. A. expressed 10:5—17. * ** patently Legislature it is clear that the intended an to create agency effective enforcement in order eradicate cancer dis-
crimination. *13 [54 124] N. J. at
605 has been a common Although reinstatement remedy already situations where an tenured member faculty see Endress v. Brookdale wrongfully discharged, Community 144 N. College, J. 109 Div. Super. Viemeister (App. 1976); Ed., v. Park Boro Bd. N. Prospect 5 J. 215 Super. (App. Div. American Ass’n Univ. 1949); v. Bloom Professors N. 129 J. College, Super. 249 Div. (Ch. 1974), aff’d field 136 N. J. Div. Super. Walker v. Wild (App. 1975); Ed., wood Bd. J.N. L. 408 Ct. (Sup. 1938), a remedy college to tenure requiring grant to faculty member is novel. in Flаnders v. relatively However, William Paterson College, 163 Super. (App. 1976). Div. Division Civil made such an Eights order. Where found properly that “at was least a age very factor” in conscious the decision to deny retention and tenure Elanders, to Dr. order its that be he offered rein statement with its tenure back accompanying plus was pay upheld.
I would have difficulty any expansive use to power Division’s grant reinstatement with tenure. How- ever, this does mean that the Division on Civil Eights never order may tenure college grant to a faculty member. Given the of N. J. 10:5-17, S. A. wording such would seem holding fly the face of the intent express Legislature victims of discrimina- employment tion be made In whole. case, instant example, record indicates that Countiss was a respected member of the Thus, faculty. if Court were convinced that dis- sex crimination was indeed the tenure, cause of her denial of affirmance of the order below Countiss be accorded be would Were proper. towe conclude that doctorate requirement motivated, discriminatorily male were teaсher-coaches to have required doctor- ates, would no there be reasonable alternative that of granting tenure. we Surely be would bound duty to make her whole by ordering reinstatement with course, tenure. Of given where a instructor clearly lacks *14 tenure, other than remedy an important qualification fact that suffice, notwithstanding tenure must ordering of discrimination. was the victim the plaintiff the discrimination sum, holding In I concur her failure cause suffered Countiss of the earnings vacating in the tenure. I also concur achieve earned would have reflective of what differential from member faculty had she been tenured Division on Civil Rights. had been awarded to failure to However, require I from the Court’s dissent load her heavier work back pay Countiss receive reflecting team than men’s coaches. comparable view, should use the full my panoply In the Court that victims disposal guarantee illegal remedies at its Countiss, discrimination, are then Only like made whole. cease. will conduct wrongful such Hughes, Sullivan, Justices Justice For reversal —Chief Judge and Handles Clieeoed, Coneoed Scheeibee —6.
For remandment —Justice Pashman —1.