*1 FRANCIS, DIRECTOR, AND H. CHARLES LIGE GILBERT RIGHTS, APPELLANTS, DIVISION ON CIVIL v. TOWN MONTCLAIR; COMMISSIONERS, OF MAYOR AND RE- SPONDENTS. Argued May 10, November 1976 Decided 1976. Shillman,
Mr. Stephen Assistant Attorney General, ar- *2 Hyland, the cause for William At- appellants F. gued (Mr. New General of Mr. torney Jersey, attorney; Shillman Nobel, counsel; General, A. Raymond Mr. Deputy Attorney on the brief). Poles,
Ms. C. Margaret Bar, member of the Virginia cause for Op- amicus curiae argued Equal Employment Cohen, Richard portunity attorney). Commission (Mr. Dichson, G. Jr. for Joseph respon- Mr. the cause argued dents.
Mr. Bernard Kuttner A. submitted a brief on behalf amici B’rith and curiae Anti-Defamation of B’nai League Toner, and at- Coalition, Columbian Inc. Kuttner (Messrs. . torneys) was opinion delivered court J. In a with Division of filed complaint
Schkeiber, Civil of Mont Charles S. the Town Rights, Lige charged J. Discrimination, clair with the Law violating Against S. A. 10:5-1 et a fireman to hire him as seq., by refusing because he was black. He averred had for that he applied a fireman’s taken on position and had failed written test [November 6, 1971. This allege was amended to complaint testing "are fair in form selecting procedures and to seek discriminatory operation” compensatory but damages.
A second amended first complaint, which incorporated added a second count which the complaint, amended Director of the Division claimed that of Civil Rights unlawful written examination had an discrim- employment on black de- inatory applicants properly effect was for necessary to measure the traits successful signed per- formance of the duties firemen and policemen.1 He also the selection charged procedures were “unvalidated” had unlawful potential to discriminate against black applicants.
Another filed complaint Director Mont- clair that on December black alleging nine police officers were denied promotions result of tests which were not professionally validated and had a disparate effect Therefore, minority candidates. it was asserted the Town Law violated the Against Discrimination.
Both matters were heard at same time before a desig- nated Hearing Examiner. At the hearing Lige Mr. testified- had that he of a Montclair applied position fireman after read a having that an newspaper advertisement ex- amination was to be given and firemen police positions, *3 no there were in the although fire openings department. Mr. had from Although Lige graduated an integrated high school in West and had also Virginia successfully completed one year he failed written college, the test. Subsequently he found another job. Since no fireman been had added force, to the at the hearing Lige Mr. any abandoned claim for relief. The Examiner compensatory Hearing refused to permit with to whether would questioning respect Lige now or in the a with accept job future the Montclair Eire what, and Department other his than educational back- his ground, and had experience training consisted.
The Division produced witness, one other Mr. Carmen a who had field C'appadona, representative been about two a a years. and half his with result of interviews three As members (their board function is be- screening explained ascertained that Fovember low), he applicants the and fire police given were same written departments empowers “reasonably 1 N. A. J. S. 10:5-16 the director and fairly” any complaint. aggrieved persons, amend addition to General, Industry, Attorney Commissioner of Labor and or the complaints. Commissioner Education file A. N. J. S. 10:5-13. known A¥onderlic examination, personnel standardized com- testing vocabulary test.2 It consisted of questions de- of mathematical and problems, prehension, computation knowl- ascertaining and items reasoning general ductive edge. attain a score
To had to minimum pass, applicant be in the top taking and those points 75% he told exam. Mr. stated that had been Cappadona not not been validated. He was professionally test had and was related whether test judge job qualified have been The did not know if the test could validated. he examined the one on November given was test 1971. examination and the
If the the written applicant passed data, verified bureau the record by detective investigation a board which he would be then interviewed screening pro- consisted of a the town psychologist, attorney, college fessor, broker. and investment principal school public be followed any The board had been given guidelines The applicant in its evaluation. screening or process fireman; if a policeman asked he wanted why friend; what would do if he had to arrest he policeman, would cause married, whether if he were tire hours duty he had sus- injuries what any problems; personal tained. The board considered attitude applicant’s It its recommen- applicant demeanor. each graded of Public dations were the Commissioner .submitted to standards, no written Safety. Commissioner, guided *4 his choice. exercised unrestricted discretion making was taken 58 men. It was by The 1971 test November white, were Mr. and who so who were black known 12 15 he whom approximately eliminated Cappadona evidence, hearsay but did not noted 2 The Town nature admissibility. hear All admissible in relevant evidence is contest its 13:4-12.8(b) J. ings A. See N. C. before the Division. J. A. 10:5-16.
9 names, assumed Caucasian because of their telephoned were 19 about 25 or 26. On this basis attempted to visit he concluded that 19 black and 39 white. were applicants test, Of the 3 blacks 26 the written whites who passed 2 blacks and 10 did the investigation whites not survive 2 were rejected made the detective bureau and whites 1 black and The remaining screening board. department. police whites were to the appointed on the Of were placed white remaining applicants was appointed list. None police department waiting fire depart- the fire was on the placed but one department, ment list. waiting of whom 1, 1972, were 104 policemen,
As of June there hired had been force were black. police The members of the 1936 and December different dates between many between had been 1, 1972. The selected January blacks 1966, 9 of the 1, 1972. May 15, 1940 and Since January had been black. policemen employed The were black. 21, 1972, 89 firemen As of April be- at various times 89 had commenced employment Since 19, 1971. 1, 1939 and October tween June black. hired, 3 had one of whom been 44,000, of Montclair had population inhabitants, 930,000 County’s 12,000 black. Of Essex were 280,000 about were black. pro- testified the police promotion
Mr. Cappadona in other in 1971 not examine the (he procedures cedures did to the hiring practices. were years) comparable generally and detective ascended from patrolman employment ladder selected lieutenant and Detectives were captain. to sergeant, detectives, 4 were Of without written examination. lieutenant However, police sergeant, black. to become taken. The same screen- a written exam had to be captain, recommenda- and made board interviewed the ing applicants un- who his exercising Commissioner again tions chose the successful promotees. bridled discretion *5 10 1971
The written examinations for were promotion pre- by the pared Commissioner. were from questions The derived tests National State Association of Police used and Chiefs, the Essex Police and from his own County Academy had experience. not been Cappadona was told questions validated. He had not studied professionally questions, but understood were to circumstances Mont- they geared clair. Examination not but carried papers signed, were a number so remained un- that the applicant’s identification known A The passing. score of was grader. grade 1971 written exam for the 7 blacks who was failed sergeant took it. Thirteen the 29 whites One black took passed. They lieutenant and one for received captain. telst the lowest exam in their and were grades respective groups made, In promoted. when 5 were promotions were black. No been made then until promotions had since 1971.
Each applicant for promotion had job received evaluation scores from his These supervisors. which were also ratings, considered the promotion from 58 process, to 87.5 ranged for the patrolmen and detectives. black policemen’s scores were 81.3; between and 70. exceeded
The five-man was directed screening board’s interrogation to indicia of leadership, initiative and ability, good judg- ment. No were blacks interviewed for a position sergeant’s since all failed the Each written examination. black had had applicant been screened lieutenant captain vacancies. May a new of Public was Safety Commislsioner
chosen. He testified that because that had complaints been filed with Division, Seymour, Dr. John Chairman Department at Montclair Psychology State Teachers College, requested prepare submit examination to be used for Dr. hiring purposes. Seymour proposed Beta Examination, Revised then the Wonder- replaced lie The new tests, examination all consisted of telst. visual, is, which were based on pictures drawings. *6 examination. pass physical Each was to applicant required had been designated committee new three-person A screening had The committee members to interview applicants. the 1973, as guidelines. with criteria furnished specific been was the new exam given 5 vacancies and there were police scores 15 whose The top under the of the auspices college. 2 blacks were Only selected. down 70 were to ranged expressed The Commissioner and one was hired. the group new employees: about selecting his thoughts * * * appointed qualified ones men should the I think best be the good percent hopefully black. of them would and Town
At the moved to dismiss com- hearing Lige’s because he had suffered no had shown plaint damages, not him, discrimination was and any practiced was not redress. The Town denied discrimination seeking any any of the in its and moved for dismissal promotions hiring Division’s failed make a prima claims because it had out ease. facie The Examiner found that of the whites Hearing 67% No- and of the blacks exam in passed employment 16% 1971,
vember and that of the white and of the 36% 6% black were As for applicants approved hiring. promotions, and no blacks 1971 the written test passed feergeant of the whites did. were in 1972 No blacks promoted 45% and were. black Mont- population whites 32% 27.2%, clair was but County 30%, Essex of the fire police department depart- 14% 3.4% were Examiner these ment black. The held that Hearing when “taken with administration of percentages together telsts,” invalidated which demonstrated a “disproportionately blacks,” effect on constitute a prima showing negative facie forward going of discrimination shifted the burden had been no in- Town, there although admittedly Town.3 tentional discrimination Hearing Griggs Co., 3 The Examiner referred to Duke Power 401 849, (1971), 424, S. S. Ct. L. Ed. 2d 158 U. which held that
Since the Town did not offer affirmatively significant evi- dence to establish the job relatedness of the written hiring or promotional tests, concluded administration of he violated Law tests Discrimination. Againist Rights 1964, C. §§ Act of 42 U. S. under Title VII 2000e-2000e-15, the Civil of evidence relat the Wonderlie test in absence job performance inadequate. ing criticism For a placed prove Note, employers see Em burden validations test ployment Rights Discrimination and Title VII of Act the Civil appli 1109, 1127, 1128, (1971). Howv. L. Rev. All job cants took the same examination and its lack of relatedness does racially necessarily support finding discrimi the test was natory. Washington Davis, See 426 U. S. Ct. *7 equal protec (1976), L. 2d 597 the Ed. where the Court held that component tion Fifth the Due Process Clause Amendment the police though was not violated even the number of black officers was proportionate population qualifying not amination, to mix and written ex the many whites, which four times as blacks failed as Mayor Harper City not validated. also Balti See and Council of more, Supp. (D. 1973), 359 F. 1187 where the court com Md. mented : *** * comparison ignores population segments all A the fact qualified positions may equally population for the in of the not be Supp. question, Examiners, (S. F. Board 330 203 Chance v. population 1971), groups D. and different within the N. Y. particular job, have different Beecher, levels of desire for the Castro v. 1971). Supp. (D. importantly, Mass. And most F. acceptance discrepancies composi idea that between racial the community plant department tion of the or alone make and out the prima inevitably facie case of discrimination leads toward narrowing options fashioning remedy. If Court’s problem discrepancy, is to be demonstrated mere of a fact logically bring then the solution employment must amount to an order to population statistics, line with statistics into lest continuing prima Hiring the Court mandate a violation. facie required by that manner in the first instance is not law. No citizen right public employees perfectly has a constitutional to have re composition hiring Beecher, flect the racial unit. Castro Supp. (D. 1971), (1st Mass. F. modified 459 F. 1972) ; Co., Cir. Stebbins Farm v. State Mutual FEP Insurance (4th 1972). cases 142 And Cir. courts must be careful not give misconceptions through evidentiary credence to such their re quirements. discrepancy employment To hold that a between the population community population prima and the facie a viola wise, required. tion of law would not be [Id. it is not 1193- 5], 1194n. The Examiner Hearing found that also neither the screen- board nor the Commissioner had ing received any standards by which to He guidelines operate. found the entire selec- tion He process discriminatory. recommended that the Town be found N. J. A. guilty 10:5-4 and violating 5:13(a), and that find that Director was denied Lige an equal of his race opportunity because and that be he placed on the fire department waiting list. Examiner Hearing issuance of order suggested cease and desist use any examination which had not been validated, professionally interviews, oral board and of the of an screening exercise absolute discretion in the Commissioner without effective standards and protections discrimination. He also indicated that the Director’s order could require ap- affirmative action propriate minimize "future effects of which have in the practices past resulted racial discrimina- tion.”
The Director Examiner’s adopted Hearing findings of fact of law. He ordered conclusions discontinuance of all validated and professionally tests until approved by the Division. Oral interviews by Board in Examining prohibited. were He hiring process ordered that Charles and all who others took the exam on Lige November 1971 were reconsidered for which position|s they all black who were applied, applicants denied pro- in 1971 were to be motion reevaluated. Nondiscriminatory *8 promotion were selection methods to be devised, sub- ject approval.4 Director’s To remedy past dis- he provided: crimination appointments Department to the Montclair Fire Future shall be following qualified minority appli (1)
conducted basis: One Lige’s complaint ques should been 4 Whether have sustained any monetary award, since he did seek tionable position no fireman’s filled, Lige’s willing had been and the record is not clear on accept position Hearing ness to permit since the Examiner refused to along examination these lines. qualified every (1) applicant one for white be selected cant shall Department minority officers on the Fire the total number until persons.5 (15) equals least fifteen had all who been The order black provided applicants were in the Police Department denied promotions non-diseriminatory in accordance with to be reevaluated that: order stated The standards. * * r Department promotions shall Montclair Police Future following basis:
be made on every promoted applicant qualified one shall be Black One applicants minority applicant qualified until those white 50% promoted. qualified by been the re-evaluation deemed have order, entire its from the but limited appealed Montclair the above quoted contentions to from appeal appellate for the stated reason of the order remedial portions and testing pro Montclair had chosen to revise its selection reversed and we granted Division cedures. Appellate J. 490 (1975). for certification. Division’s petition relief between distinguished Division The Appellate on a "class remedy quota specific person persons and rectify "to wTongs It out that pointed basis.” invidiously which in itself a method of *** very would defeat the pur others discriminates et which the Division seq., N. J. S. Á. 10:5-1 pose individuals from all created, namely, safeguard sex, race, color or because of invidious discrimination Montclair, N. J. Super. Town Lige creed.” had exceeded its It held Division 281-282 (1975). the federal state con had statutory power, violated remedies. down the ratio and therefore struck stitutions Id. at 282. provide contingency might for the does not arise 5 The order qualified applicants minority number
if an insufficient there were fill the vacancies.
15 are espoused Anti-discrimination in New principles Jersey Law Discrimination, Constitution and the Against N. J. A. et seq. I, S. 10:5-1 Article of par.
Constitution, which did not in the 1844 exist Constitu tion, states: * * * person of No the exercise shall be in discriminated * * * race,
any religious principles, military right, or civil because of ancestry color, origin. or national 'This provision should be evaluated in the light its historical Under meaning. an in- Constitution dividual’s civil were not to be rights denied on account of his I, religious principles. Article 4. par. At the Con- stitutional Convention the Joint Committee on Constitutional Bill of Rights to the reported Convention that “impairment the basic truth of equality [had] manifested itself in the undemocratic practice many employers to refuse employment persons of certain racial or Ill religious of 1947 groups.” Constitu- Proceedings tional Convention at Committee, 344^345. The recognizing had Law Legislature enacted the Dis- Against crimination and desirous any possible doubts eliminating of its constitutionality, stated that “[t]oday, principal threats to the truth of found equality practices race, color, because national discriminations or religion in the of employment, education, enjoyment origin fields business, of a in a trade property pursuit livelihood Id. at 345. a new It recommended that profession.” 5 be I which would include paragraph inserted Article freedom from race, color, discrimination because of reli- gion or national origin obtaining employment.
The 'Committee acknowledged distinctions based on race, color, or national religion were origin abhorrent our democratic ideals social conscience. It agreed whole with heartedly Chief Justice Stone’s comment in Hirabayas States, hi v. United 81, 100, U. S. Ct.
1385, 87 Ed. 1774, L. : (1943)
16 *** solely ancestry citizens their Distinctions between because of by people very a free whose institutions are their nature odious to upon equality. are founded doctrine Discrimination, Law enacted in
The Against pre dated two deemed by Legislature the Constitution The years. Law an of the to police power pro that exercise State’s and to fulfill provisions mote the welfare general N. J. S. A. 10: civil rights. the Constitution guaranteeing may referred in the he con 5-2. Those to rights Statute out detail in the greater to be those spelled sidered held It been that effectuation of 1947 has Constitution. I, been implemented mandate in Article has paragraph Sons, Against & v. Div. Discrim Inc. the Law. Levitt ination, dismissed, U. 514, 524, S. 31 N. appeal J. Ed. 1257, 4 2d 1515 (1960). 80 S. Ct. L. race, that discrimination Law pronounces
The because not individual creed, color or threatens origin national and foun the institutions and menaces but rights privileges All A. 10:5-3. N. J. S. democratic State. dation of free employment obtain opportunity have the persons em Any S. A. 10:5-4. N. J. without such discrimination. an em or discriminates who to hire refuses ployer or terms, conditions employment with respect ployee practice an unlawful employment is guilty privileges N. J. A. 10:5-12. S. discrimination. unlawful person file aggrieved may act provides The also complaint verified charging General Attorney with in N. A. 10:5-13. After J. S. discrimination. unlawful probable conclude General Attorney vestigation the and complaint support allegations cause exists amicably If conciliation. not matter to resolve the seek name in the complaint and serve he to issue adjusted, then to held before the hearing the Division is like Industry Labor and Division. Commissioner A. J.N. and file complaints. to make wise empowered 10:5-13.
haveWe had occasion to of the acknowledge strength public policy the broad accorded the interpretation pro- Jackson v. visions statute. See Concord Company, Blair, N. J. Daily Passaic News 63 N. (1969); J. Co., 474, 484 David v. Vesta (1973). J. we
(1965), adverted to the fact that unlawful discrimination “is as a regarded wrong public merely basis a private grievance.”
The remedial powers, reflecting strong public policy,’ *11 authorize the Director to “issue and cause be to served on such an order respondent such requiring to cease respondent and from desist unlawful such or unlaw- employment practice ful discrimination and such action, to take affirmative includ- to, but not ing, limited reinstatement or of hiring, upgrading * * * with employees, or without back pay, extending * ** full and as, all in equal privileges persons, to of judgment director, will effectuate purpose * * act *.” N. J. A. 10 :5-17.
This broad remedial affirmative includes power the right to take which will positive action to operate prospectively eliminate and unlawful discrimination. We have prevent hitherto, for orders example, upheld required posting in housing projects notices of the order pro Director’s hibiting also that per discrimination. These orders required tinent data be Di constantly updated submitted to the vision that the unlawful so Director could be assured that no discrimination in the project was housing being practiced. Fitt Zahorian v. Real J. 399, Russell Estate 62 N. Agency, So, too, 409-410 we have affirmed the (1973). validity a rule owners of file annual requiring multiple dwellings to rentals and reports the identification tenants. disclosing Builders, Blair, N. J. Owners and Managers Association every N. J. 330 case the remedial au (1972). where N. J. used, S. A. 10:5-17 has been thority the sanction has been an injustice to correct an individual which applied to has occurred and to assured that no future discriminator will take place. acts meliora- been to authorize act never construed
The has in favor of in- effects discrimination tion whom has been prac- no discrimination against dividuals to Employer in Guide ticed. The Division its pamphlet, Law in New Anti-Discrimination Jersey (1965) “Quotas Qualifications” also con- entitled has section prohibit the Law Discrimination to Against strued discrimination. The remedy past following ques- are in brochure: tions and answers set forth group any agreement employer legal with to make cm an Is it Q. specific non-whites? number hire a discriminatory agreements nature. A. No. Such applicants employer in the white discriminate Q. Should complying or Federal Law? with State that he either belief against groups of for or no discrimination either A. There should be opportunity provision equality employees, fair but rather [Emphasis applicants. original; 5]. treatment for all individual bespeaks history find nothing legislative We discrim- the dissolution of authorizing an interpretation lan- statutory a racial inatory quota. consequences in- to an wrong refers future action to cure guage It with respect persons dividual. addresses itself gen- *12 whom dis- against from individuals distinguished erally, only making crimination been in the sense of practiced, has will receive in full and they equal certain future This is not to that some actions to eliminate say privileges. or reduce of discrimination not prior may the results full and assist the extension of equal priv- to appropriate whose there dis- persons to class has been against ileges crimination. But does not the Division empower act of a accomplish imposition to that result racial quota. of the Division Civil Rights Director The Commis- Employment Opportunity Equal United States curiae, federal courts construed argue amicus have sion, au- Act of 1964 to Rights of Federal Civil Title YII remedy past injustices racial to a class quotas thorize had not of who been ad- individuals directly favor
19
Q.
affected. 42 U.
versely
1981,
S.
1983, 2000e-5(g).
§§
Altshuler,
Mass.,
See Associated Gen. Contractors
Inc.
of
490 F.
9, 16-17
cert.
1973),
2d
Cir.
416 U.
(1st
den.
S.
957, 94
Ct. 1971,
S.
L. Ed. 2d 139 United States v. Cont. (1974); Masonry Inc., Ass’n Memphis, 871, F. 2d Cir. (6th 1974). courts, The federal have however, accepted not sweepingly the racial has limited remedy. The Second Circuit quota use “clear- situations where there has been cut pattern long-continued and racial discrim egregious ination” and must the effect of the reverse discrimination “identifiable”, not be namely, that not be concen trated aon small relatively group non-minority persons. Serv., Kirkland v. New York State Dept. Correctional 520 F. den., reh. en banc F. 2d (2d Cir.), Cir. (2d 1975). Kirlcland has not been satisfied test case. Montclair’s discrimination was unintentional given in November 1971 tests were shown to have been validated. A clear-cut con pattern long tinued and egregious discrimination has not been es Furthermore, tablished. the effect of the reverse discrim ination at least with respect promotions the police department is directed a small identifiable non-mi nority group.
Some federal courts have refused to sanction racial quotas discriminatory to remedy past promotion practices. See Guardians, Inc. v. Members Bridgeport Bridgeport Civil Commission, 482 F. Service 2d 1333 (2d 1973), Cir. cert. 421 U. 95 S. Ct. Ed. den. L. 2d 481 (1975), the Court wrote with respect where “the promotions that *13 will imposition obviously discriminate quotas those against who embarked Whites have upon career with the police
20 now because only of advancement to be thwarted
expectation these impact quota upon of their color alone. The rather than harsh can exacerbate men would be also Equal at See diminish racial attitudes.” [Id. 1341]. 2d F. Local 532 Com’n v. Employment Opportunity Co., Tobacco American Patterson v. 821 Cir. (2d 1976); 535 F. 257 1976). Cir. (4th in history Congressional
We note that some passing under the be permissible dicates that racial were not to quotas 7213 110 Rec. Cong. See Federal Act of 1964. Rights Civil 110 Clark); Case and of Senators (1964) (memorandum Clark); of Senator Rec. 7218 Cong. (1964) (memorandum Hum 12723 of Senator Cong. (1964) (remarks 110 Bee. of Senator ; (remarks Cong. (1964) Rec. phrey) Clazer, Discrimination Williams); John J. Affirmative C. dis 2000e-2(j). also 42 See 44-45 see U. (1975); § Ass’n Rios v. Enterprise Hays of Judge senting opinion A., 634, and con F. 2d at Loc. U. Steamfitters Employment in Equal Feinberg Judge curring opinion at 833. v. Local 532 F. 2d Com’n Opportunity ap use of as rejected have cases Two recent Civil Rights under the Federal action affirmative propriate George Directors President and Flanagan In Act. 1976), D. C. use F. Supp. (D. College, town affir of an funds part scholarship to distribute a quota Civil Rights under Title VI program action mative held that: The District Court rejected. 1964 was Act-of appropriate program ensure action affirmative While opportunities persons are considered the same are afforded that all permissible basis, when it it is not allocates on the same for benefits aid) housing (be jobs, or financial favor of resource a scarce [-Td. 384]. of others. the detriment one race to 415 F. University, Commonwealth Virginia Cramer to permit the court refused 1976), D. Va. Supp. (E. discriminate university to subsidized defendant federally position applicant- teaching plaintiff
SI of sex ground where defendant was com- to attempting for pensate past deficiencies. To correct the imbalance in manner would violate YII. The Title court concluded upon such discriminatory practices “[r]elianee achieve or ‘quotas’ use of an ‘goals’ unconstitutional means to achieve an unconstitutional end.” at 680], [Id.
We are satisfied that the federal statute and the federal judicial interpretations which sanction racial and dis criminations against persons because of race not app osite.6 Director,
The
racial imbalance
Mont
rectify
in the'
clair
Eire
two
Departments, adopted
Police and
racial quotas.
One-half
future
to the fire
had
appointments
department
consist
blacks until
there were 15 blacks
qualified
in the
Promotions in the
department.
police department
that one
every
black be
required
qualified
promoted
blacks,
white until
whose
qualified
qualified
50%
rejected
had been
had been advanced.
promotions
The Director’s orders
to black
granted priorities
appli-
vis-a-vis
cants
mini-
employees
others
(assuming
mum standard is
without
met)
regard
particular
and education
Tt
training, experience,
of each applicant.
may be significant
two
were in the
top
blacks
of those who took the
Beta
which,
Revised
Test
we were
advised
oral
has been
Divi-
argument,
approved by the
sion, The lack of some basic educational
such
prerequisites
as the ability to read 'and
resulted in
understand may have
failure.
Equality
will become
opportunity
employment
when
more realistic
education
co-equality
opportunity in
exists.
Lowering
standards
for the Montclair Police
Transp. Co.,
6 In McDonald v. Santa
Trail
Fe
U.
(1976)
Supreme
S. Ct.
For is discrimination any less invidious whether the non-minority been person subjected has to racial discrimina- tion because the was in effect for a policy day, a month or years a or whether he is one of small' identifiable class or an white, indefinite large group. The who has not been hired on the Montclair Eire Department promoted in the Montclair Department Police because he was white and not black, could in a unquestionably charge with complaint Division "unlawful discrimination” and an "unlawful em- because racial ployment practice” of discrimination under Di N. J. A. 10:5-12 of paradoxical' position a. very not is manifest. He cannot and should use rector have con criteria which and the Constitution the Legislature to a device. It is important recognize demned as remedial a constituted racially difference between rectifying improperly District and Bd. Jenkins v. Morris school, School Tp. Ed., one to attend right J. 483 for no has a (1971), school; or a for a applicant job a whereas an segregated judged irrespec be considered and promotion right has tive of race. raises wrongs right past use of the quota
Conceptually, The protec- minority. of each the interest spectre Law Against and the Constitution Jersey New tions of the a state We are blacks. restricted Discrimination not Police Montclair Is composition minorities. ratio population be measured against Department found, which and, if imbalance minority group of each should many groups, quota will be the case assuredly com- Halpern balance? Judge to “correct” the be used below: opinion Division Appellate mented * * * pride people nation on “mix” our We ourselves proven strength history our lies. “mix” com- has But is wherein prised blacks, Poles, Jews, Scandinavians, Italians, but Ricans, Hungarians, Cubans, Germans and others too numer- Puerto per- thing given find to list. It is one the Division to that a ous give him Zahorian son been discriminated relief. See has Agency, (1973). Fitt N. J. when Russell Real Estate But remedy basis, quota fashions a on a class leads it problems to insoluble top piles [134 discrimination discrimination. Super. 277, (1975)]. N. J.
It has in- particularly been quota said when com- applied vidious to matters intellectual involving A racial of and petency capacity.9 quota derogatory *17 sociologist, Clark, psychologist and Kenneth B. noted 9 Dr. having quoted held in an interview as said: “For blacks to be to standards, in standards or eases no lower different some standards contemptible Tribune, Chicago form of a most racism.” June 29, 1971. beneficiary the intended Professor patronizing minority. to Education, book, Black and Myths Thomas Sowell' in his writes: Tragedies (1972), quotas greater having harm is far than a few [T]he actual done — incompetent actually people and harm here and the that will there population. primarily all done will harm black What be be arguments campaigns saying, really and loud and people just it, they clear, don’t have is that black will have given something something. devastating in order to have be — impact message people particularly young of this black black (cid:127) —(cid:127) people outweigh any jobs may will few from this extra result strategy. already competent, people Those black who are and who producing competence among be could instrumental in more this ris-
ing generation, completely undermined, be will as black becomes n — n — synonymous in- the minds of black and white alike with competence, synonymous charity and black achievement becomes with payoffs. functions, out the overall carrying Division’s be extend appropriate for Director to-consider methods to full who desire to join to blacks equal privileges Montclair means are Eire and Police Some Departments. available, more and more difficult though time-consuming than Eor application of reverse discrimination. example, addition to and fair objective the use of criteria testing, Town black can might to obtain more attempt qualified didates black and recent high students alerting colleges the next graduates job school before opportunities examination. A course familiarize the short applicants with the could nature of examination be type sponsored. See, e. Carter F. g., Gallagher, (8th 2d 452 F. 1971), (8th Cir.) Cir. modified on rehearing, Ed. cert. den. 406 U. 92 S. Ct. 32 L. banc), (en modus 2d 338 Some other be fashioned (1972). operandi may and the Division. in the by the Town Vacancies departments will occur and. the imbalance unintentional dis due crimination will ultimately rectified. herein our-
In view of our we have addressed holding clause of the 14th Amendment protection selves to the equal *18 26 Constitution, Federal whether a state “compelling
interest,” if has been applicable, demonstrated. See dissent of Mr. Justice in ing opinion Douglas Odegaard, DeFunis 312, 341-344, 416 U. 94 333, 1704, 1714, S. S. Ct. 1718- 1719, 164, 178, 40 L. Ed. he 2d 182-185 wherein (1974), comments that racial classification the strictest necessitates clause; under the v. Down scrutiny Alevy equal protection Center, state Medical N. 82, 39 Y. 384 Y. 326, 2d S. 2d N. E. 348 2d 537 (1976); Harper Mayor City Coun Baltimore, cil 359 F. 1187 Supp. Md. (D. 1973) (strict test scrutiny Anderson v. San Francisco Uni satisfied); District, School F. 1972). 357 248 Cal. Supp. (N. D. fied In Bakke v. 18 Cal. Regents University California, 3d 132 stay Cal. 553 2d 1152 Rptr. P. (1976), , —U. L. Ed. granted -, S. 97 S. Ct. filed, for cert. L. W. 3437 (1976), petition (U. U. S. Dec. 14, Court 1976) (No. 76-811), the California Supreme found that a school aside admissions which set program 16 class was invalid openings minorities disadvantaged minority because could procedure acceptance result students whose were inferior to white qualifications appli cants, that invidious, discrimination was and that compelling state interest criteria were not satisfied. society.
A creates castes and It particu divides quota an abhorrent where we larly striving equality are Bickel, A. The totally in which race is irrelevant. society Morality Consent 133 (1973). the remedial in the Director’s provisions We find that I, of Article 5 of State Con- par. order violative entrusted Director beyond stitution and to the power N. J. S. A. 10:5-17. We affirm judgment Ap- . Division. pellate MAN, OE BY
OUTLINE DISSENTING OPINION PASH J. The Issue P. 27 I The Remedial Power of the Division Rights on Civil Propriety II The Racial Quotas Remedial ' Racial as Quota A. Remedial Remedy Unlimited Quotas The Remedial Racial B. “Unqualified” Fostering an *19 Work Force Remedial Quota O. The Retroactive ' Relief Constitutionality III The of Remedial Racial Quotas Conclusion Pashman, J. (dissenting).
The Issue Our an today decision concerns validity important tool in the arsenal of racial remedies for discrimina- legal tion. We must decide whether New Division Jersey on Civil Rights utilize may guidelines employment quotas based un- racial criteria upon to undo the of past effects lawful practices showing been no hiring when there has acts these effects resulted from intentional, purposeful of racial prejudice.
At stake is a narrow relatively legal concerning question as a remedial based on racial criteria legitimacy quotas and, measure duration scope, designed specifically of finite to redress an administratively adjudicated or judicially find discrimination. The ing majority finds unlawful such measures are dele beyond scope authority Division Civil and violate the to the State gated Rights Constitution, New Jersey New Art. and the Jersey ¶ I Discrimination, N. J. A. 10:5-1 et seq. Law Against a contrary reach conclusion and therefore unhesitatingly must dissent. their remedial of racial subject quotas, regardless emotional,
intent, evokes a visceral whose response qualities consideration of their beneficent thoughtful obscure . not concern use Yet this case does effects. historical as a means of redressing wrongs Rather,
black citizens. we are upon called to consider remedy specific instances of discrimination. The conducted hearings by the Division on. Civil Rights pro duced ample evidence the Division’s supporting 'findings racial discrimination in the hiring .promotion practices of the Montclair Department of Public Safety;1 the factual basis a need for an demonstrating effective cle'a’r. remedy is Moreover, this case does provide forum appropriate evaluating merits relative of different remedial devices, or general policy objectives such as equal employ ment and a opportunity Nevertheless, work qualified force. the narrow question posed this case is of fundamental — importance the authority of the State Division on Civil to utilize Rights certain remedial devices in enforcing constitutional proscription against invidious discrimination. N. J. Const. (1947), Art. 5.¶
This will question require three-part First, inquiry. *20 I examine the source and extent of the power vested in the on Division Civil Rights to enforce the laws against discrimination. I will then consider some of common the misconceptions about remedial and discuss the specific suggests majority Hearing 1 The that the Examiner have erred relying Griggs Co., 424, 849, v. Duke Power 401 U. S. 91 S. Ct. (1971). However, L. Ed. 2d 158 Ante at 11 n. 3. to re fails general these criticisms to the ease at Montclair late bar. made no procedures attempt argue testing whatsoever that its were useful job performance. contrary, indicators future On the the Com Safety (which missioner of Public testified that the Wonderlie test Lige 1971) had been administered to Mr. was eliminated at police departments behest of they the chiefs of and fire because majority willing were dispense dissatisfied with it. Unless the requirement employer job- with showing some make relatedness, clearly it must conclude that Montclair has failed to re complainant’s showing but statistical tests resulted in a applicants exhibiting pattern selection of significantly a racial differ pool ent from Paper that of the of candidates. See Albemarle Co. Moody, 405, 425, 2362, 2375, U. S. 280, 95 S. Ct. L. Ed. (1975) ; Douglas Corp. Green, McDonnell 792, 802, 411 U. S. 1817, 1824, Ct. 668, (1973). also, 36 L. Ed. 2d See infra (Pashman, dissenting). at 46 J.
29' objections which the raised to majority has this form of relief. Finally, the constitutionality of these under devices and the State Federal will constitutions be addressed.
I Remedial Power Division on Civil Rights 1884, early As with the passage First Civil L. Bill, 1884, 219, c. New to chart Rights Jersey began initiatives course of forms legislative outlawing various of discrimination guarding infringement civil Among enactments rights.2 legislative designed these safeguard newly vindicate recognized rights a 1938 act creating New Goodwill Commis- Jersey sion whose educational and informational functions were intended to racial L. “foster religious understanding.” 1938, R. J. II.3
Although striking evils, numerous these specific early efforts did not the comprehensive scheme needed to provide with the incidence of cope widespread invidious discrimina Instead tion. a uniform constituting law, body they represented patchwork remedial legislation confronting 2 Among statutory provisions rights which concern various civil interests, preceded Against and which the enactment of the Law Dis crimination, seg., 1945, N. J. S. following: A. 10:5—1 et are the 1881, p. 149, (recognizing right public L. c. to a education free discrimination) ; from (prohibiting L. c. 277 discrimina public employment tion in race, color) ; works on the basis of creed or (prohibiting by State, L. nicipalities c. 295 discrimination counties or mu age) ; on the (prohibiting basis of L. o. 247 dis compensation, promotion crimination in matters of or dismissal on *21 status) ; the basis of sex 1942, or marital (prohibiting and L. c. 114 public in discrimination employment works or defense contract race, creed). the basis of color or 3 Because the Commission served primarily a function which was nature, and educational informational in any and because it lacked powers, effective statutory enforcement its authorization was re pealed 1945, in 1945 L. c. 170 concurrent with the enactment of Against the Law Discrimination. note 2 supra. discrimination. Bee isolated instances of
only administrative and Moreover, lacked the coordination they en effective remedial to become instruments the power result, dissatisfaction with the As policy. State forcing finally prompted Legis of this the legislation effectiveness Discrimination, omnibus Law Against adopt lature et L. c. 169. seq., generally, S. A. 10:5 — 1 8ee 1945, J. “Antidiscrimination in Action in Mew Blumrosen, Laws L. Rev. Rutgers Study,” A Jersey: Law-Sociology (1965).4 not that discrim statutory only recognized
This scheme of individuals inatory practices impinge upon rights treatment, also subjected who to such but are personally effects which such acknowledged debilitating practices N. J. A. society have on the welfare of As large. expressly provides: 10:5-3 practices Legislature and finds declares that discrimination any inhabitants, race, creed, color, because of national its origin, ancestry, age, sex, liability marital status or because of their States,
for service in Armed Forces of the United are matter government State, of concern to the and such discrimina- rights proper privileges tion threatens not the in- habitants but menaces the institutions and State foundation democratic State. free 10:5-3; emphasis supplied.] [N. J. S. A. order protect individuals discriminated against its implement general purpose specific provisions, the Law Against also Discrimination for the cre- provided emphasis implicit enforcement, from education to 4 The shift Rights upon founded, on Civil which the Division com agency pleted with creation of that L. c. until 1960 59. original Against Discrimination, Against Law a Division Under the placed auspices Department Discrimination was under the powers Education, (“Educa former and derived its under Title 18 seq. tion”), purposes, A. et For N. J. S. 18:25-1 administrative particularly enforcement, agency was reconstituted as Rights Depart the Division on Civil and transferred Safety ment of and Public Law 1963. L. c. 40. *22 of a on ation Division Civil Rights. agency, This is of Law and located and Public Department Safety under the is administrative of the Gen- leadership Attorney broad eral, has been accorded to the stat- powers effectuate N. A. 10:5-6 J. S. intent. outlines this mandate as utory follows: prevent pro- [T]o . . and eliminate discrimination in the manner . persons against race, creed, color, this hibited act because of origin, age, ancestry, marital national status sex ... or em-
ployers, organizations, employment agencies persons labor or other race, and to other take actions discrimination because of creed, color, age origin, ancestry provided; national herein or ... jurisdiction given general and the division created hereunder is and authority purposes. for such addition to to or having power initiate com accept for violations of the Law plaints Against Discrimination, N. J. S. A. 10:5-13, the Division has been empowered undertake a actions variety objective whose ultimate the elimination of invidious prejudicial Thus, it practices. J. rules, S. A. may promulgate com investigate 10:5— N. J. plaints, attempt conciliation between concerned parties, A. 10:5-14, S. hold hearings concerning and operation N. J. A. discriminatory effect of allegedly practices, 10: 5-16, and even Law provisions Against enforce Dis in a summary crimination proceeding before Superior N. J. S. A. 10:5-14.1. Court, Division, If the after these procedural various determines there has steps, been Against Discrimination, of the Law violation statu N. J. S. A. 10:5-17 to: authorized under torily , respondent . and . issue cause to served such an order re- quiring respondent such and cease desist from such unlawful em- practice ployment or take unlawful discrimination such af- action, including, to, hiring, hut not limited reinstatement firmative upgrading employees, pay, or or without with back or restoration membership, any respondent organization, extending labor equal accommodations, facilities, privileges advantages, full and persons, as, judgment director, in the will to all effectuate report
purpose
act,
including
requirement
*23
compliance
manner of
....
10:5-17; emphasis supplied.]
A.
[N.
S.
J.
Law
aspect
Against
Courts have construed this
in
effectuate its remedial
liberally
order to
Discrimination
N.
Camp,
Fraser
Robin Dee
J.
Day
v.
purpose.
Sons,
&
Discrimina
Against
Levitt
Inc. v. Div.
(1965);
tion,
N.
363 U. S.
514,
dismissed,
J.
524 (1960), appeal
we
418,
1257,
80 S. Ct.
Initially, whether broad grant power intended include remedial based upon racial criteria. such Although authority not explicitly granted by statutory provisions cited and has not above been considered itself,5 court the Division I find 5 Contrary majority’s implication, question to the ante at presented by impression. regard, this case is one first In this majority’s Rights publication, reference to the 1965 Division on Civil JSmployer Jersey Laio, Guide to the New Anti-Discrimination is mis placed. quoted pamphlet The section of the to a refers situation in employer unilaterally attempts impose quota which an on the action, regardless work force which he hires. Such of how benefi cently may be, intended and, hence, constitutes favorable dis criminatory particular group. treatment on behalf This is to that basis it exists. those legal inferring Unlike ample Law Discrimination which outline Against sections for considering allegations discriminatory- the procedure 10:5-17, N. J. A. basic authorization conduct, fact, general scope. remedial powers quite sug which it remedies expressly provides section Con In Jackson v. not intended to be exclusive. gests Co., cord 54 N. J. 113 this Court (1969), example, ordered damages an award of compensatory upheld for a who been subject Civil had Rights person Division on Court found this form discrimination. The housing statute, not mentioned relief, implicit though A. J. S. 10:5-17: broad ambit of fully permissible affirmative action is not defined. The section *24 “including, to, hiring, up only says or but not limited reinstatement grading employees, pay, back or restoration to of with or without — any respondent organization” obviously membership, labor re in n t — employme ferring extending and discrimination in “or full equal accommodations, advantages, privileges all facilities and — persons” undoubtedly referring, great generality, in to affirmative housing places of unlawful discrimination and of action in eases public analogous held, interpre earlier accommodation. We have act, tation situations under terms “include” are words like specified enlargement examples and not of limitation * * * merely especially thereafter are illustrative. This so here is “including” by phrase the word “but limited where followed the [54 126-127.] N. J. at to.” concede, ante majority willing as the Consequently, have demonstrated willingness New courts Jersey by remedies imposed of different variety to sanction specific the absence of despite Rights, Division Civil in- remedial measures have authorization. Such statutory annual owners reports by submission of cluded the required on the number of ten- minority unit dwellings of multiple Builders, and Mana- N. J. Owners in their apartments, ants distinguished in the instant case such as that from a situation ba attempts past agency governmental to correct the effects of where a practices. discriminatory Blair, for the damages Ass’n v.
gers supra; compensatory alternative, housing, nonsegregated increased cost of finding Co., damages v. Concord supra; compensatory Jackson Zahorian v. discrimination, by caused suffering pain J. Real Estate 62 N. Agency, (1973); Russell Fitt by of available apartments submission lists mandatory Cherry Polk v. years, two every days certain landlords Inc., of classified Hill Apartments, supra; prohibition Passaic sex, on the basis of advertising segregates Blair, by News v. An innovative Daily supra. approach with the liberal inter Division on Civil Rights, coupled courts, trans has Division’s pretation powers N. J. S. A. 10:5-17 from a mandate general formed “affirmative and effective means action” into viable pursue under law. protection assuring equal indicates that statutory interpretation (cid:127)This pattern clearly for “affirmative action” standards judicially developed of relief Division on ordered encompass type Civil case. Rights the instant
II Quotas Bemedial Badal Propriety of breadth acknowledges majority apparently Though Law Discrimina- Against remedial provisions 16-18, rules out adminis- ante at it nonetheless tion, imposed permissible judicially tratively relief for Court’s discrimination. The granting means novel nor un- neither employment quotas criticisms *25 is Indeed, its adamant to this opposition remedy usual. who are disillusioned with current some critics echoed and to enforce the agencies courts administrative efforts See, e. Discrim- g., Glazer, laws. civil rights Affirmative ination (1975). the that can never from race premise begins
The majority treatment because is an it a for preferential be criterion relation to merit or bears no quali- factor which “irrelevant” fieations. It that racial exalt rather guidelines argues group, interests, than individual and divide society on basis the of thereby race ethnic background, the ben- undoing eficial effects of the im- anti-discrimination laws. More portantly, majority the State interprets Constitution to bar all such plans, whether or not aimed preferential of injustice. instances This is alone in virtually Court never that is holding employment as a quota permissible remedial device aimed at out the effects of discrim- wiping ination. I believe that majority underestimated the has for such necessity many cases, measures in and exaggerated their effects. negative
A. The Remedial Quota Racial as an Unlimited Remedy
Pirst, majority’s characterization of remedial quotas a Thus, creates the remedial the ma- spectre bludgeon. remedial jority obligations envisions imposed will continue in perpetuity this case will subse- invite to assist other quent imposition Indeed, quotas groups. will majority seriously suggests system be caste the ultimate result the remedial which quotas we con- ante at sider see 24. today, This characterization not miscontrues purpose preferential quotas, underlying but overlooks their flexibility remedial device.
Quotas which are limited in and duration scope which are properly designed particular area and a limited end will not encroach upon principles of fairness One and reasonableness. commentator has used the term “tailored decree” to characterize the need for limited to effects eradicating past discrimination: tailored decree avoids conflict with the stricture preferential it treatment based race observes tioo limitations. if that, though pre- The first even class beneficiaries dominantly, exclusively, blacks, being if not are not con- benefits they because their race but because are victims dis- ferred beneficiaries, identify crimination. is used being Race but symptomatically, along criteria, identify used with other some *26 36 the benefit conferred .... The second limitation victims applicant being equally. It result in the treated is limited. will discriminatory long does no than as the credit more neutralize the So notwithstanding criterion, that, can be made of claim effect unequal credit), appearance (the of outward treatment additional merely equally remedy and thus
the beneficiaries treated theory employment [Fiss, fair “A consistent with the Theory of a law. Employment Laws,” 235, of Fair L. Rev. 38 U. Chi. 307-308 ; emphasis (1971) supplied.] consistently have approved federal courts Accordingly, the of which were to instances designed remedy specific have circuits discrimination. of the ten federal Nine past upon based preferential promotion plans endorsed hiring of carefully decrees were fit exigencies to molded Co., Patterson v. Tobacco 535 See American each situation. Eor 257, 1976) F. 273-274 and cases cited.7 (4 2d Cir. Allen, A. C. v. F. 614 Cir. A. P. 493 2d (5 example, hiring the Fifth Circuit on future 1974), imposed quota, Police, both limited the Alabama State stressing and its limited duration: quota served purpose extraordinary remedy would is not In conclusion we note that quota employment its limitations. The of relief dis- use without duty is bottomed on the eradicate crimination cases chancellor’s continuing practices. By mandating of unlawful effects object quota hiring discrimination, of those who been the have signs promptly operates change the outward and visible relief yesterday’s thus, provide impetus racial distinctions A., Enterprise Local 638 Association U. v. 7 Rios Steamfitters 1974); (2 622, United States v. N. L. Indus Cir. 2d 628-31 501 F. tries, 1973) 354, (8 ; Inc., Illinois Build Cir. Southern 479 F. 2d 377 (7 ; Ogilvie, 680, 1972) 2d 471 F. 683-86 Cir. v. Association ers 86, 544, (9 443 2d Ironworkers Local F. 552-53 Cir. States v. United ; v. Brotherhood Electrical 1971) International States United 144, 1970) ; 38, (6 Workers, Cir. Local 428 F. 2d 149-51 Local No. Vog & Frost I. & Workers v. Ass’n Heat A. International 1969) (5 ; 1047, ler, Associated Con General F. 2d 1053-54 Cir. Massachusetts, Altshuler, 9, (1 Inc. v. F. 2d 16-18 tractors of (8 1971) ; Gallagher, 1973) ; F. 2d Carter Cir. Cir. Pennsylvania Secretary Eastern Association Contractors 1971). (3 Labor, Cir. 176-77 F. *27 psychological process dismantling barriers, otherwise, of practices. temporary remedy by past a It that seeks erected spend to promptly by creating itself as as it can a climate which objective, employment successfully operate criteria can neutral to public job-related employees solely select on basis of merit. emphasis 621; supplied.] F. [493 at 2d On the hand, other have been courts reluctant to sustain where have quotas they been used than other purposes See, to overcome the effects of e. past discrimination. g., Cleveland, Smith East v. 363 F. D. 1131 Ohio Supp. (N. E. D. 1973), where court declined a to impose quota on the that had grounds there been to erase “positive efforts the effects of past discrimination.” 363 F. 1152.8 at Supp.
Because remedial are mollify intended to primarily vestiges instances specific discrimination, they of past will vary content each depending the circumstances of case. Among the remedial have plans ju- which received dicial approval are which an to orders require employer hire fixed number of v. minority Carter Gal- employees, lagher, supra fire (municipal to hire department ordered minority persons to pursuant until set ratio 20 qualified had minority persons been v. Cen- employed), United States Lines, Inc., tral Motor 325 F. 478 D. N. Supp. (W. C. 1970) injunction (preliminary the em- to granted require ployment six blacks as over-the-road Alterna- drivers). tively, courts hire employers have ordered em- minority precisely Dep’t N. Y. for this reason Kirkland v. State 8 It Serv., 1975), (2 F. 2d Cir. Correctional and the test majority implicit case, inapposite which the finds are to the Appeals present expressly found, As set of facts. the Court quota operation overbroad in court-ordered its effect: imposes appealed permanent quota from Insofar as the order re- upon strictions who seek advancement means of a court- those job-related approved civil service examination we reverse. plaintiff of such order are Its benefits limited class. upon expand- quota requirements shifting rapidly based loholly base, any alleged ing consequences unrelated to the past discrimination. emphasis 430; supplied.] [520 F. 2d a fixed comprise percentage until the relevant they
ployees 212, IBEW, Local 472 F. 2d force, United v. States work (labor Cir. union ordered to (6 1973) acquire 11% Allen, supra (Ala A. A. C. v. black P. membership), hire on a one-to-one bama Police ordered to blacks State until were black), basis of the supporting personnel 25% Co., & Rubber 339 F. Supp. Buckner Tire Goodyear Ala. established (N. D. M. D. 1972) (set percentages and ap minority admission persons pre-apprentice or utilized Finally, have prentice courts training programs). ac minority required hiring employees ders have F. ratio, Vogler McCarty, fixed cording *28 to union to make referrals (5 Cir. ordered 1971) (labor a whites and on one-to-one or decrees ratio), blacks other on some minority employers employees hire require Beecher, basis, 459 725 1972) Castro v. F. 2d Cir. (1 limited ap ordered make (Boston police department subsequent a of eligible from pointments pool to department priority exhausted), been minority applicants pool until had priority Alioto, Western Addition F. Org. Supp. 369 Community 77 514 542 1973), (9 1975) Cal. aff’d F. 2d Cir. D. (N. fire whites (San department Francisco to appoint required to a a according desig and blacks one-to-one ratio until ex list of been minority had qualified applicants nated . hausted) federal instances in which the on emphasis
The majority’s rejected quotas ignores have limited courts either neces remedy is often those courts that realization on deci fact, it relies in other cases. sary proper rejection with blanket odds its wholly which are at sions Guardians, Inc. v. Mem instance, in Bridgeport For quotas. s Commission, F. 2d Civil Service ber Bridgeport 1997, 95 Ct. cert. den. U. S. 1973), Cir. 1333 (2 ap Second Circuit expressly L. Ed. (1975), 2d of race the basis applicants hiring favoring proved discrim of intentional showing there was no though even of an “archaic test” the use criticized opinion ination. which was not job related, validated or and the absence job of any significant minority efforts aimed at recruiting per sons. Id. at 1340. strike down Although court did promotion it noted the lower make quota, court’s failure to that the examination promotion was not related. finding job Id. at 1341.9 Co.,
Likewise, in Patterson v. American Tobacco supra, Fourth Circuit noted the among unanimity opinion other circuits, remedy preferential relief authorizing discrimination, for unlawful upheld and itself the propriety of such relief “when there is a need for it.” Id. compelling at 274. It use approved, principle, promotion quota supervisors, although it found that the employer’s rate of appointments supervisory positions was high remove enough any need for in that compelling quota Id. 274-275.10 particular case. Dep’t Serv., supra, repre 9 Kirkland Y.N. State Correctional departure Bridgeport Guardians, sents a from Inc. v. Members of
Bridgeport
Commission, supra,
Civil Service
and from other decisions
(see
opinions
Circuit,
Judges
the Second
Mansfield and
dissenting
reconsideration,
Kaufman
from
en
the denial of
banc
(1975))
counterpart
F. 2d
5-11
and has no
in the Third Cir
opinions.
cuit’s
See United States v. International Union
Elevator
Constructors,
(3
;
1976)
Local Union No.
Finally, contrary similar imposition will entail of such relief position racial or ethnic groups. interests of other protect quotas mean does not in certain cases validation of Judicial quotas ato fixed per- are entitled or ethnic groups all racial on each governmental representation or established centage Law to the subject concern with each private agency if be imposed relief can Discrimination. Such Against whose discrimination past an adjudication has been there have Even there though may felt. continue to be effects these complainants in the past, minority applicants been discriminated employment practices that the also prove must which Minority or effect. groups them purpose unable will be to prove into the area just have moved dis- related to under-representation that proportional I the quotas imposed would find Accordingly, crimination. limited scope Rights, Division on Civil being Division’s remedial exercises valid operation, powers. Quotas The Remedial Racial
B. an Fostering "Unquali- Work Force fied”
Next, the that remedial will majority argues pro- mote and even the hiring of require unqualified municipal This con- employees. argument appears to be based — clusion that failure to examination pass regardless administered, examination is tests, what skills it — whether validated indicates a lack professionally which in turn shows one is education unsuited As the job. states: majority *31 priorities granted applicants black The Director’s orders employees (assuming met) vis-a-vis minimum others the standard is regard particular training, experience, and without of each to the education Equality opportunity applicant employment .... co-equality opportunity will become more realistic when tion exists. in educa- Lowering the standards for Montclair the Police Departments Fire is not the solution.
[Ante 21] at first, this Although argument may at appear plausible careful examination rebuts notion that these any guidelines a harmful require standards” Montclair. “lowering by The order issued Division by fully on Civil Rights recognizes critical need for qualified applicants therefore limits the pool eligibles minority oandidates have who demonstrated that were they so qualified: appointments Department 6. Future to the Montclair Fire shall be following qualified (1) minority appli- conducted on the cant shall be selected for til the total number of basis: One every (1) qualified applicant one white un- minority Department officers on the Fire equals (15) persons at least fifteen .... # 11. deemed clair qualified tion shall be so notified in One Police qualified [*] black qualified by white Department applicants applicant black [*] the re-evaluation applicant who are deemed shall be made on the until writing. [*] 50% shall Future [*] of those have, be qualified [Emphasis supplied] promoted promotions been [*] minority following by promoted. for this in the Mont- sh applicants every re-evalua- basis. one [*] Thus, to the extent that the majorit}’ is with a concerned of standards” in “lowering the fire and police departments of Montclair to accommodate less-than-qualified or incom- petent candidates, it should be satisfied by requirement the eligible applicants pass the revised examination adopted Department Montclair of Public Safety.
More is balance that the troubling be- majority strikes merit, tween the concept standardized, measured by written tests, and the of fair goal for employment minority members. As group illustrated bar, real case to be question considered is not whether public agencies should insist upon obtaining employees. The neces- qualified Rather, obvious. sity the important questions which must be addressed are what are relevant (1) job and how they should measured and qualifications (2) be can “more supposedly qualified” applicant by-passed to hire applicant purposes the effects redressing discrimination. to the first
As fails to inquiry, majority address but it question squarely, cri apparently willing accept *32 teria which a on educational place premium background. The record no contains evidence job relevant concerning because the qualifications the not to rebut respondents chose casa; appellants’ prima moreover, now the has question facie become moot with the of new development employment pro cedures which have won the of Division on approval Civil Rights. Nonetheless, the same will surely issue arise cases, I and must differ with subsequent majority’s position that solution education” is the “coequality only to the at hand. cer problem Indeed, presumption tain written tests a serve discriminatory function acting for headwinds” minority ‘Trailt-in candidates based on the likelihood that these applicants have been denied and cultural whites. schooling opportunities available to See, Co., v. Duke Power Griggs 431, 401 U. S. at supra, 91 S. Ct. 28 L. Pd. at 164. To sanction over- which are not demanding requirements indicators proven job performance is tantamount to permanently foreclosing employment workers.11 prospects generation minority history continuing efforts since Robinson v. 11 The this Court’s (1973), guarantee equal oppor Cahill, N. to educational J. 473 give majority tunity to the State’s schoolchildren should reason concluding “coequality opporunity in educa to hesitate before key opinions equal employment opportunity. our is the to See tion” supra: I, (Robinson (1973) Robinson 63 N. J. 196 and orders after II) ; ; (1975) (Robinson III) (1975) N. J. 35 J. 133 ; ; (Robinson IV) (Robinson V) (Robin J. 69 N. 70 N. J. 155 VI). Contrary majority’s assumption, temporary quotas son to the likely produce lasting provide they more results because As Jus unfair.
Moreover, fundamentally such decision v. Green: Douglas Corp. in McDonnell remarked tice Powell Griggs rightly the educa- deficiencies in that childhood concerned minority citizens, resulting background forces be- from tion and yond control, in- and cumulative not be allowed to work a their lives. remainder of their vidious burden on such citizens S. Ct. at 1826 [411 U. atS. 680] Ed. 2d at 36 L. Testing Sobol, “Seniority generally, See Cooper A Laws: General Approach Pair Employment Under L. Promotion,” 82 Harv. of Hiring Criteria Objective Rev. 1640 (1969). inherent recognize problem also fails to majority Hiring used in this context. “merit,” as it is the concept candi- identify are designed
and promotion procedures posi- well in a given likely perform are most who dates in- achievements or should focus on procedures tion. These cor- those characteristics to the extent that nate talents merit employer. Though to the demands respond employment salutary public has served purpose system have choice, it may measure for objective by providing of a par- out members effect of weeding undesirable *33 of factors which on the basis minority racial or group ticular that We should admit job performance.12 are unrelated to jobs significant minority persons in can secure means which job foothold, processes informal recruit this numbers. With place. Pro and same work ment attracts friends relatives point” where numerical stan fessor Blumrosen refers to a “take-off jobs enough guarantee minority workers so dards will ordinary processes that these employment prac will be sufficient to ensure fair Sense, “Quotas, and Law in Labor Relations: Three tices. Common Equal Rutgers Opportunity,” L. Rev. Dimensions (1974). majority’s statutory constitutional and 12 Tke reference State appointments promotions provisions require and which civil service fitness, practicable, according and as far as does to be made to merit highlight potential (1947), I, ¶5, N. Const. conflict with J. Art. seq. However, N. S. A. et 7. its and J. 10:5-1 Ante at n. coequal statement between constitutional statu conflict merit allocative, these measurements of serve an rather than evaluative, function, value recognize judgment in educational Karst See implicit preferring background. Horowitz, Protection,” “Affirmative Action and Equal 60 Va. L. Rev. 950 (1974).
Moreover, merit is defined to com- necessarily by reference needs. I em- munity objectionable see in a nothing public a concerted effort recruit can- ployer making minority didates in order to of an improve efficiency agency’s Guardians, work areas.13 See Inc. v. specific Bridgeport Commission, Members Civil Bridgeport supra, Service F. 2d (2 addition, at 1340-1341 Cir. In other 1973). devices unrelated to screening educational background may valuable written be more than tests assessing qualifica- instance, strenuous, Por tions. in view of the and often dan- work, nature exam- gerous, competitive physical may a better provide ination method for ap- eliminating tory provisions the conclusion that the State’s anti- not dictate does yield principle, to the merit as defined laws should discrimination analogous settings, the federal courts service commission. civil employed by governmental unit to de evaluated the criteria have job they performance. related to were When no termine whether showing job forthcoming, courts relatedness these have re procedures quired suitable formulation of more selection and have temporary quotas. competing factors, imposed For discussions of the Gallagher, supra, 322-324; Chapter, 452 F. 2d Boston see v. Carter A.A.C.P., Beecher, (1st v. F. Inc. 2d Cir. N. Allen, supra, 1974); But N.A.A.C.P. 493 F. at 618-619. see Dept. Serv., supra, Y. Kirkland State Correctional 520 F. 2d at 428-429. policemen say 13 This is not to black can work in black community areas, repre or that the black deserves a certain level of police department. public agency sentation Nor does a have duty legal to maintain a racial balance in its work force which re composition community. However, the racial flects these con may employer’s judgment minority siderations enter into an that a applicant qualified particular type is better for a of work. Whether desirable, suggests conclusion is merit encom pass directly danger criteria linked to race. The in this practice, course, minority the risk that it will be used to channel *34 employees prevents advancing. into a limited which area from them Y. Vulcan C. Society for a fire department. plicants Commission, v. Fire Inc. Civil Service Department, F. 1276-1277 N. Y. Supp. 1265, 1973), D. aif’d and (S. F. 1973). on other 2d 387 Cir. grounds, (2 remanded I would adhere to the Therefore, adopted by standard when that, Examiner case and Hearing require written job statistically tests or criteria are shown to have racial or impact minority group, disproportionate given skills criteria measure demonstrate that employer Ante job necessary satisfactory performance'. Human at 28 n. See Erie J., dissenting). 1 (Pashman, Tullio, (3d Relations 493 F. 2d at Commission supra, Tate, 472 F. League Educational 1974); Cir. Equality Bell Parham v. 2d Cir. Southwestern (3d 1973); Tel., extent, I 433 F. 421 (8th 1970). Cir. To this Co., v. Concord would in Jackson qualify the suggestion supra, 54 N. J. at complainant given evidence. by burden persuasion preponderance Where include test procedures the employer’s unvalidated evaluations, subjective adequate without ing devices discrimination, enough it is standards safeguards against or The that the show complainant discriminatory consequences. better of relevant employer identify core equipped which add More necessity.” considerations to “business up over, in complainant, employer contrast to the individual a readily can draw accessible fund of information upon array nondiscriminatory of resources to establish procedures. character of his Quota The Remedial Retroactive
C. Relief relief majority argues ordered the Di- white injustice rector serves an to the who applicant is. favor a putatively over passed hiring promotion view, black candidate. its distort less qualified basic of the Law Discrimination in- policy Against which is race-aware rather stituting temporary regime *35 than color blind and by “the fundamental discarding pre- in a cept society color, democratic that merit, skin should determine individual’s in Ante place society.” at 22. It would avoid this pitfall by retroactive awarding relief to the individual who solely files the and trust- complaint, ing prospective in nondiscriminatory selection methods to eradicate the effects of past discrimination. While I do not underestimate the impact of on the prospects candidates, white I uphold must validity nonetheless their as the effective only means in many of making situations inroads on any significant racial discrimination. our decisions
Although previous situ- only have considered in ations relief was no in- prospective in sought, stance did out we rule more far-reaching retroactive remedies in appropriate cases. On the our contrary, willingness imply variety of remedies without stat- express been utory has a belief support by animated that the State’s commitment to equal rights by be ill-served grudging, would half-way Law applications Discrimination. Against Ante J., at 32 (Pashman, now To limit dissenting). Director’s remedial powers to the the ma- measures cited jority undermines statutory guarantees constitutional against unequal treatment by imbal- permitting the work ance force this caused discrimination to per- indefinitely. sist natural processes
It
true
replacement
occur will
alter
“ultimately”
as vacancies
the character of
but such
result
to occur
departments,
unlikely
the Montclair Eire
soon. As of
had
Department
firemen, of
of 89
whom three were black
Of
(3.4%).
force
number, 41 firemen had been
to the
appointed prior
1952;
three new
testing
only
employees,
institution
black,
hired
1970.
one
had been
since
Unless
including
pro-;
more
through
blacks
hired
the selection
portionally
proc-
that the
will
future,
department
ess in the
retain
plain
racial character. Continued reliance
lopsided
upon
its
edu-
sole
background
hiring
cational
criterion enhances
Even under
num-
probability.
suggested quota,
would have
ber of blacks on the force
reached
17%, in seven years.14
roughly
assumes that
course,
expeditious change
a concern for
Of
efforts
requires vigorous
of racial discrimination
finding
Quotas
prove
often
to be
that condition.
eradicate
*36
the
of victims
vindicating
rights
means of
only practicable
an
pattern
when
is
egregious
there
of discrimination
International
see U.
v.
Union
discrimination,
S.
past
Constructors,
No.
538 F.
Local Union
Elevator
drastic,
with less
court-
1976),
noncompliance
or
Cir.
(3d
Org.
Addition Community
see Western
remedies,
ordered
Alioto,
in
1973).
D. Cal.
(N.
369 F.
these
Supp.
v.
effective
dis
stances,
availability of
remedies
ready
the
More
discrimination.
a recurrence
intentional
courages
all concerned
law’s
to
that
over, their use demonstrates
when
violated.
flagrantly
bite
sharp
can have
proscriptions
no
of official
examples
such
this case
Although
presents
I fear
the ma
wrongdoing,
recalcitrance
purposeful
as a remedial
device
rejection
quota
wholesale
jority’s
with
disputes
on Civil
in
the Division
Rights
will hamper
novelty of
Given the
this
employers.
ques
less cooperative
Di
recommendation of
in
courts
tion
our own
majority
it seems unwise
Civil Rights,
vision on
standards in those situations.
the use
numerical
out
rule
Quotas
employer
public
when
are also appropriate
affirmative
to make
ef
duty
special
which has
agency
discrimination,
whether
vestiges
to eradicate
forts
See,
Allen,
N.A.A.C.P. v.
g.,
e.
supra,
intentional.15
or not
Attorney
Rights
brief
tbe Division
Civil
14 The
General’s
year
likely
per
points
three vacancies
to occur in
out
every
department
in
Thus
if
the foreseeable future.
even
fire
the
vacancy
representation
by blacks,
black
would not
were filled
composition
(2T.2%)
approximate
Montclair
for seven
years.
Carter,
interesting
discussing
to note that President-elect
15 It
positions
government,
appointments
in the federal
has an-
his
O’Neill,
Pennsylvania
The majority insists that class-wide relief is inappropriate in this However, case. the dual A. policies of J. S. 10: 5-3 both a encompass societal general interest in upholding “the institutions foundation of a free democratic State” the corrosive against effects of discrimination, well as more particularized interest in individual safeguarding rights The relief in privileges. case is vital to eradicate the cancer of however, discrimination. The majority, seizes individual upon grievances as the primary act, focus of the and construes N. J. A. 10:5—17 to restrict compensatory relief to minority whom applicants discrimination *37 has been practiced by employer. It states: Curing illegally imposed against racial discrimination an indi- — justifiable vidual ap- understandable but race is not an propriate apply standard to on a class basis. [ante 23] at I for two disagree reasons.
Eirst, this reading of the act contradicts its language. Even N. J. S. A. 10:5-12 though does define an unlawful employment or an unlawful practice discrimination in terms of an of an employer’s treatment individual, A. J. S. 10:5-17 refers to affirmative action affecting “employees” and “all persons.” Neither the specific nor wording the gen- eral import section a warrants distinction between pounced large persons minority be will select numbers of “to compensate past.” for their exclusion in the United Press Inter- Report, 18, national News November 1976. a
relief to cure to an wrong remedy individual and relief to a a class. On the wrong contrary, indi- language complaint, sustained, cates that the individual if triggers will Director’s to take affirmative which power action act,” “effectuate the this formulation purpose his own goes beyond compensating complainant loss. See N. J. S. A. expressly 10:5-3. of the measures Many the class in the directed at clearly contained statute are this Court as persons represented by complainant, Indeed, has class-wide remedies. recognized upholding some forms majority point by allowing concedes the of past affirmative action way reducing effects Ante particular group persons. discrimination at 18. hirings appli I limit to qualified would
Second, though effective instance, remedy cants in available entire make relief to the may be to discrimination are cases, who turned the applicants some minority group. may on the examination are unsuccessful who away or from after the fact. Others deterred be identifiable of an dis aware they employer’s because even applying Metal United States Sheet See criminatory practices. Car Workers, 1969); Local F. 2d Cir. (8 Crisler, F. 331; Morrow ter v. Gallagher, supra 1974). (5 Cir. decision, black none of the majority’s I interpret As —(cid:127) — the 1971 test Mr. including Lige who failed applicants in the Although treatment future. preferential will be given submit to nondiscriminatory examination free to take they pass test), procedure (if interviewing the revised non future given any advantages will not be vis-a-vis they order, as modified the ma candidates. mimority claimants;16 injured to a re-examination of limited jority, *38 (mte Lige’s majority’s complaint, to Mr. reference 16 Xhe right relief, apparently to even his because no n. easts doubt discrimination affords no them past special fact, status. In a minority whether or requires applicant, not he has been to discriminated demonstrate his against, superiority to either non-minority candidates. present As as long majority’s concerns lie with the innocent prohibiting who stranger victim of discrimination from being hired, the problem discrimination will un remedying go Moreover, majority resolved. those ignores potential who have plaintiffs examination, failed biased but who are to travel the to unwilling rigorous road relief out lined by today’s decision. Because the done damage unlawful hiring practices beyond this case extends few who will individuals be submit to a re-ex willing amination, I would that all hold past applicants given meaningful relief, the Director’s order indicates. favors a majority fully nondiscriminatory set of pro- will the “best yield candidate. Un- qualified”
cedures it can offer no assurances that will fortunately, more blacks be hired. Recruiting special training may conceivably increase the number of black employees the Montclair of Public I Safety, but doubt whether can Department they Therefore, be effective all instances. because they will often be the effective means of remedying discrimina- tion of time, within I find a mandate reasonable length use of in the racial quotas Legislature’s declaration that racial discrimination “menaces” the foundations of our society. position had fireman’s been filled and had not he testified his
willingness accept However, paragraph job, if offered. 5 of the requires retesting grants merely Lige, order Director’s Mr. placement waiting job priority openings. him list on a future Surely, deny simply there is no him this conceivable reason relief testify point; prosecution indeed, because he failed to on this his complaint suggests accept any position. he would case, option rejecting job. he entitled to have the
Ill Quotas Racial Remedial The Constitutionality of quotas constitutionality employing I turn now discrimination. on criteria as a remedy based tp. reach the necessary question not did find it majority amendment under fourteenth of their legality violative because it found them States Constitution United New Constitution. I, Jersey Article paragraph order have reservations about the Director’s Although I I have ante at me alter its terms in respect, lead one such about of racial under validity no doubts when es- they either the or Eederal Constitution State against minority groups. sential to correct discrimination unambiguous interprets “express As the majority I, J. Const. Art. the State can (1947), language” ¶ race criterion for rely inflicting never upon permissible an in It society. loss or burden individual con- upon as in “reverse that whether purpose benign, cludes discrimination,” or as in official ra- malign, segregation, cial classification is as a violation of equally pernicious “the merit, fundamental a democratic precept society that color, skin should determine individual’s place not Ante at 22. society.” It towards whites operates insidiously alike, more depriving qualified blacks whites of fair advancement opportunity employment or and casting aspersions the abilities those blacks who benefit from Moreover, preferential suggests treatment. an unworkable and undesirable goal of mi- proportional representation in all nority groups institutions of society. any case, In provision the constitutional itself is regarded as straight- : forward person any . discriminated No be . the exercise sliall . * * *
n civil right . . of . . race . . . because . . Nevertheless, our decisions prior suggest we have always viewed the State Constitution as strictly color Builders, Ass’n v. N. J. Owners Managers blind. Blair, that a promulgated contended rule supra, plaintiffs J. under N. by the Division on was invalid Rights Civil *40 A. from mul- S. annual reports 10:5-12 because required racial of designation owners the tiple dwelling concerning A literal of our Constitu- tenants applicants. reading rule, but we refused to tion would have prohibited ig- salutary reporting nore the purposes requirement Mountain, writing discrimination. Justice ending a Court, unanimous said: generally accepted despite It is now that earlier statements de- * * *
scribing being blind, the Constitution color who those seek acutely to end racial discrimination must he color conscious. often 336; emphasis supplied.] [60 N. J. at holding This was consistent with our earlier decision in Montclair, Morean v. Bd. 42 N. J. 237 (1964). There, we a readily sustained for the plan transfer and assign- ment within pupils district, school although the pro- posal was admittedly racially motivated and avowedly sought to control racial balance as among junior several high We schools. rejected contention that such action, di- ,of district, rected some within pupils was violation protection clause.' equal This Court said: wholly apt blindness color Constitutional when the frame segregation; is an reference attack official efforts toward it is apt generally not when the attack is on official efforts toward the segregation. [42 N. J. 243-244] avoidance Moreover, absent from the J. Court’s in N. Build holding ers, Blair, Owners and Managers Ass’n v. supra, any basis for distinction between plans desegrega school tion and remedies for employment discrimination. Justice Titus, Mountain cited Porcelli 431 F. 2d approvingly Cir. cert. (3 den. 402 U. 1970), 944, S. S. Ct. 29 L. Ed. 1612, 2d 112 and Contractors Ass’n (1971), Labor, Eastern Pa. v. Secretary 442 F. 159 (3 2d Cir. cert. S. Ct. L.
1971), den. U. Ed. 2d even (1971), though they approve instances analogous of color-conscious relief which were with ostensibly at odds 60 N. J. at It statutory 337. should be clear language. under our own as it has been Constitution, under Constitution, Federal of a blind society the ideal color does not of racial in fash rule out the factors recognition one court’s succinct remedies.17 We should heed ioning resolution of this apparent paradox: conscious. To avoid a/nd color is both color blind The Constitution clause, equal protection denies classification with the conflict imposes harm, benefit, must be based on a burden causes sense, But blind. the Con- color In that Constitution race. per- being prevent discrimination is color conscious stitution petuated undo discrimination. effect of Educ., County Board [U. S. v. Jefferson 1966) ; (5 Cir. 372 F. emphasis supplied.] 876-877 *41 I, 5 of the Article State However, I find that because ¶ than no more interpreted stringently should be Constitution relief restricting preferential Amendment in the Fourteenth Board Montclair discrimination, see Morean v. for past Education, 242-243, I turn now 42 N. J. at supra, — cir whether, and under what more important question Clause the use cumstances, permits Equal Protection methods. hiring promotion racially preferential proscription majority’s constitutionally course, mandated 17 Of Jersey. wholly quotas end in New will not their use racial pursue Aggrieved persons under federal claims are still their free complaint initially lodging with the Division Title after VII Rights. (c). Third 42 S. C. A. 2000-5 Given the § Civil See U. approval employment remedy for as a Circuit’s consistent past discrimination, International Union Elevator United States v. Constructors, 5, supra; Human Local Union No. Relations Com Erie Tullio, supra, supra; Titus, litigants who seek mission v. Porcelli v. upon procedures of effective relief look the Division will superfluous by-pass them, possible. if and seek to
55
Under
analysis, it
equal protection
axiomatic that gov
ernmental classifications based on racial criteria are in
to the most
herently “suspect”
subject
“rigid scrutiny.”
Florida,
v.
McLaughlin
184,
283,
379 U. S.
85 S. St.
13
L.
222
497,
Ed. 2d
v.
347
Bolling
U. S.
(1964);
Sharpe,
Painter,
693,
74 S. Ct.
Brown’s nature City facility. See, g., Improvement New Park Ass’n e. Orleans v. 99, Detiege, (1958), aff’ing 54, S. L. Ed. 2d U. S. 79 Ct. 3 46 358 Gayle 1958) ; Browder, (5 903, F. 122 U. 252 2d Cir. v. 352 S. 77 145, Supp. (M. (1956), aff’ing Ct. 1 L. Ed. 142 S. 2d 114 F. D. 707. ; Atlanta, City 879, 141, 1956) Ala. S. Ct. Holmes 350 U. 76 S. of rev’ing 1955). (1955), (5 L. F. 100 776 223 2d 93 Cir. Ed. See 56 as have faced the task of
However, courts enforcing Brown dual systems, to end school segregated command in on racial became unavoidable. reliance classifications in v. Charlotte this fact Swann Court Supreme recognized Education, 1, 91 Ct. 402 U. S. Board S. -Mecklenburg of a desegre 28 Ed. when it 1267, L. 2d 554 (1971), approved reflecting mathematical ratios which plan employed gation in population assigning the racial of the school composition of Moreover, necessity to schools. it admitted children when rights racial in the context of voting classifications stated “not but merely power it that court had eliminate render a which will far possible decree so duty dis of as well as bar like discriminatory effects the past States, Louisiana v. United crimination in the future.”19 715 154, 822, 709, Ct. 13 L. Ed. 2d 145, 817, 380 U. S. 85 S. Beto, 1966) Brooks v. F. 2d 1 Cir. (5 See 366 (1965). Nor of Norwalk CORE v. jurors (race grand recognized); 1968) walk 2d 920 Cir. Redevelopment Agency, (2 395 F. of tenants (race public housing). found for remedial authority prefer-
Pinally, courts have
amendment,
fourteenth
treatment
in
ential
genesis
historical
fact
the central purpose.
“the
recalling
Amendment
to eliminate
discrim-
the Fourteenth
Mc-
official sources in the States.”
ination
from
emanating
Law,”
Wechsler,
Principles
of Constitutional
“Toward Neutral
Equal
1,
(1959) ; Hellerstein,
Benign Quota,
“The
Harv. L. Rev.
”
Rutgers
Protection,
Case,’
Shelley’s
L. Rev.
and ‘The Rule
(1963).
Supreme
grant
19 The
recent
United States
Court’s
of certiorari
-
Bradley,
-,
Milliken v.
S.
S. Ct.
L. Ed.
2d 325
U.
(1976),
suggests
may
precision
per
with more
define
scope
missible
court-ordered remedies aimed at
federal
the effects
illegal
segregation.
addition,
grant
school
the Court’s
stay
University
of California from enforcement
the Cali
Supreme
Regents
University
fornia
Court’s decision
Bakke
California,
Rptr. 680,
18 Cal.
Cal.
57
Florida,
192,
v.
Thus, de from schemes preferential ment cases them apart sets force, work to attain a balanced merely racially signed See, e. g., on racial criteria. United States justifies reliance 46, Wood, Un., & No. 471 Wire Metal Lath. Int. Loc. 413 Anderson v. Francisco 408, 1973); F. 2d Cir. San (2 District, D. Cal. 248, School 357 F. Supp. (N. Unified & Heat Local 53 International Association 1972); & 1047, Frost I. Workers v. Vogler, A. F. 2d DeFunis case, Justice in the dis (5 1969). Cir. Douglas, a corrective cussed the racial criteria as propriety using measure Supra, to offset biases in the selection procedures. 340, 342, 1718, at Ct. 40 L. Ed. 2d 416 U. S. S. at of Washing at 182-183. disapproving University he ton’s procedures favoring minority applicants, application there was no that minority noted that evidence applications blocked or deliberately discouraged past. had been he said: Similarly, showing purpose policy
There was also no
of the school’s
arbitrary
entry
was to
certain
eliminate
and irrelevant barriers
groups
legal profession.
into the
18,
1715,
[416
n.
Ct.
U. S. at 336
94 S.
Ed. 2d
18]
40 L.
at 180 n.
case,
in this
on the
discrimination
Relying
finding
us
the Division on Civil
and amicus E.E.O.C. urge
Rights
the rational
test in
the remedial
reviewing
apply
basis
scheme. This standard
review
merely
requires
classification
the State bear a reasonable rela
adopted by
Massachu
tionship
legitimate
interest.
governmental
setts Bd.
Retirement v.
Ct.
Murgia,
U.
S.
Williams,
Ed.
2562, 49 L.
2d 520
(1976); Dandridge
Ed.
397 U. S.
90 S. Ct.
25 L.
491 (1970),
*44
den.,
914,
398 U.
90
1684,
reh.
S.
S. Ct.
26 L.
80
Ed. 2d
Co.,
v. Natural Carbonic
(1970); Lindsley
Gas
220 U. S.
337,
Ct.
61, 31 S.
Although
to be “suspect”
sense,
in the traditional
I cannot
that racial
agree
quotas
or any
relief,
other comparable form of
should escape rig-
orous judicial
However,
review.
behind
benign
purpose
“reverse discrimination,”
color conscious relief raises
such
fundamental
Yet,
constitutional
issues.
the strict
adoption
scrutiny standard
racial
suggests that
are
equivalent
to invidious discrimination.
work
they
It also
implies
such destructive results
are
they
justifiable
if the
state can
demonstrate
“compelling need.” Consequently,
any
it
efforts for
cripples
significant change:
and,
course,
very
It would indeed
ironic
would^cut
grain
amendment,
equal protection
were
clause used to
equality
persons
strike down measures used to
real
achieve
whom
it was intended to aid.
[Alevy
Center,
v. Downstate Medical
N. Y. 2d
39
326,
82,
(1976)].
N. Y.
2d
E.
384
S.
N.
2d
348
537
—
test
which
proper
one
has been applied
—
most federal
is a
courts
modified version of the strict
scrutiny standard which
examines
risk that the terms
will undermine the
dis
task of
quota
undoing
such,
crimination. As
to the
bears some resemblance
rational relation
strengthened
test
some judges
have
commentators
discerned in United
Court
States Supreme
down
on
striking
decisions
statutes
equal protection grounds
where neither a
classification
a fundamental
in
suspect
nor
Williams,
terest was
See
v.
397
implicated.
Dandridge
U. S.
471, 520-521, 90
Ct.
25 L.
1153, 1180,
491,
Ed. 2d
522-
J.,
523
Police
(1969)
(Marshall,
Chicago
dissenting);
2286,
408
Mosley,
92,
U. S.
92 S. Ct.
33 L. Ed.
Dept.
Reed,
2d
Reed v.
(1972);
U. S.
S. Ct.
J.
30 L. Ed.
Wurtzel
Falcey,
(1971); cf.
J.,
408, n.
(1976) (Pashman,
dissenting).
from
has
scrutiny
strict
been premised
This departure
Eirst,
racial classifications
question
several grounds.
adopted
denying opportunities
as means
have not been
They
as
did.20
prior practices
or ethnic group,
any
of past
to counteract the exclusive effects
have
devised
been
number
em
minority
by increasing
discrimination
in Brown
Second,
wrong emphasized
unlike the
ployees.
Education,
ex
have not
any
v. Board
they
stigmatized
they
Rather
have recognized
inferior.
cluded group
who have been
by per
victimized
minority persons
needs
these
Third,
preferences
gen
sistent forms
racism.
treatment accorded black
to ameliorate the
erally employed
*45
s —
four
in
with the
original
keeping
goal
purpose
Cases,
See
83 U. S.
Slaughter-House
amendment.
teenth
“The
36, 81,
Bickel,
However, “suspect” even if a classification racial to benefit the strict constitutional sense when it intended been sub- traditionally who minority members have group discrimination, jected preferential to invidious forms of be carefully scheme which criteria must incorporates de- reasonably are assessed to determine whether its features Al- achieve interest. signed to a substantial governmental agencies ordinarily decisions of administrative should though when expertise left undisturbed reflect they 'special record, are this more by evidence in the supported substantial objec- form of the same rigorous review should ensure that In par- tive cannot be served onerous alternatives. by less ticular, an such focus the duration of inquiry should scheme and its on non-favored impact groups. order indicated, I the Director’s does serve
Here, as have vindicating rights per- an important public purpose are which injured prohibited sons have been by practices who clearly Discrimination. The State has the Law Against full act effect to en- interest overriding giving left without a remedy. persons suring aggrieved in seeking reasonably expeditious change It also has stake minor- entity in the character of has excluded public ity discriminatory means. persons by *46 time,
At the same its efforts must be to remedial attuned nature of and the discriminatory response the conduct has of the Where en employer intentionally wrongdoer. there im discriminatory is reason to gaged practices, good in order to avoid a recurrence pose stringent conditions of See, Crisler, similar e. Morrow g., behavior. v. United supra; Wood, Union, v. Wire and Int. States Metal Lath. Local Alioto, Western Addition supra; Community Organization Likewise, such supra. measures are where an em justified institute, has ployer to has not yet developed, a refused set of nondiscriminatory procedures to adminis- acceptable See, trative to a authorities or e. g., court. N.A.A.C.P. Allen, Beecher, Boston N.A.A.C.P. v. supra; Chapter, supra; Service, Vulcan Society N. Y. C. Department Fire v. Civil Com’n, supra. case, however, Montclair has present cooperated with the Division its on Civil Rights devising procedures hiring promotion discriminatory avoid conse- quences of its former tests and methods. It has interviewing also shown to hire willingness members. minority group extent, To some that appears make-up current and fire police departments reflects low rate of turn- over. Therefore, I cannot conclude that it is necessary extend preferential scheme to black hiring applicants ivho have not been injured by discrimination in past order uphold the I purposes earlier, the act. As I have noted would revise Director’s order to limit favored treatment the class black applicants who were denied eligibility on appointment the basis of Montclair’s unrevised pro- cedures.
I once this limitation emphasize again on scope relief not ease. every Different circum- required justify stances well remedial which quota encom- might passes have not been persons who directly injured themselves by See ante discriminatory practices. (Pashman, J., at 49. I However, do find anjdhing less than the dissenting). relief I have outlined would' have the unwarranted injustice effect victims wholly leaving uncompen- sated. I do
Finally, not consider the duration un- of this order will duly Montclair long. Although its subject to pro- visions for five approximately years, the few num- relatively ber of positions affected the order makes this reasonable period of time. Similarly, impact preference on other applicants, though insignificant, outweighed necessity redressing wrongs black ap- plicants. *47 6 of the I would final order modify paragraph
Accordingly, candi- minority treatment only those preferential to give of according provisions to the who were re-evaluated dates relief to 5, in limit preferential order to paragraphs testing pro- discriminatory injured by who were those I leave intact. cedures. would paragraph
CONCLUSION lamen- than a more today decision represents The majority of enforcing task difficult judicial insensitivity table majority’s laws. With Jersey’s anti-discrimination New blindness, this constitutional color requirement sweeping affirma- has to those forms opposed Court declared itself a loss to which cause perceptible action'for .minorities tive has Not only non-minority group. member any any hiring promo- it use flatly prohibited type — a discrimination remedy position tion quota —court but it no federal or state appellate other taken of other affirmative variety challenges has also invited of societal discrimina- consequences action aimed at plans I case do facts recognize tion. Although I discrimination, most form fear egregious present make majority’s broad assertions of the will opinion that the for our to combat more virtually agencies State impossible abuses. flagrant majority’s conclude that for- holding
I can I dissent. generation delay. respectfully mula for another Justices Moun- For Justices Hughes, affirmance—Chief and Schreiber Judge Sullivan; tain, Clifford Kolovsky — 6.
Dissenting —Justice Pashman — 1.