*1 a were such that there was no room finding the defense anal consented to even though that the penetration was not. The there vaginal penetration finding that there was attack necessarily finding involved rape all inflicted injuries victim and that were upon her will. against Justice For reversal in part part affirmance —Chief Mountain, Justices Jacobs,
Weintbaub, Hall Judge Sullivan — 5.
Opposed—Hone. ZAHORIAN, COMPLAINANT, FITT SANDRA v. RUSSELL AGENCY, REAL ESTATE RUSSELL A. FITT AND FANNING, MARION J. RESPONDENTS-CROSS-APPEL LANTS, RIGHTS, AND NEW JERSEY DIVISION ON CIVIL APPELLANT-CROSS-RESPONDENT. Argued Reargued November March 1973— Decided March 1973. *2 Slcillman, General, Attorney argued Assistant Mr. Stephen Jersey New for the cause appellant-cross-respondent Jr., Attor- F. George Kugler, Rights Division On Civil (Mr. Ben-Asher, At- David General, Deputy Mr. ney attorney; *3 General, brief). on the torney respon- the cause for the Harold J. Brown
Mr. argued Rus- Agency, Fitt Real Estate Russell dents-eross-appellants Brown, & Joyce (Messrs. and Marion Fanning sell A. Fitt attorneys). — for Amici Curiae Peter A. Buchsbaum a brief
Mr. filed NAACP, New Jersey, Civil Liberties Union American Branches, Urban NAACP State Conference of Jersey New Women, for Organization National County, of Essex League Jersey New Middlesex, and Northern Monmouth Essex, The American and League Action Equity Women’s chapters, Jewish Congress. delivered of the Court was opinion
The Division, The Appellate an unreported per Jacobs, curiam, affirmed the Division on Civil Rights’ of dis- finding relief which crimination but modified the it had directed. on Civil and the Rights petitioned respondents The Division We granted certification. both petitions. cross-petitioned J. 355 (1972). 60 N.
The Zahorian filed a verified complainant Sandra com- with the Division Civil plaint charging on Rights, had a denied her respondents opportunity renting status, marital listed because her sex and apartment solely violation of J. 8. A. The Director 10:5-12(h). Division found and Mrs. Sylvia cause probable, designated an Pressler, Examiner existing selected from Hearing due panel, complaint. to conduct course hearing and her support- she took the testimony witnesses, testimony respondent with ing along behalf of her- only Mrs. who witness on Fanning was testi- and the other respondents. complainant’s self may fairly it the Examiner mony fully was credited and be summarized as follows: unmarried, 24 years old, was as a employed
She analyst in Clifton. She had computer programmer been her with but wished obtain living parents apartment and her friend also herself female who was unmarried employed old. to share 27'years They planned Montclair, a two-bedroom and in apartment, preferably her search for an September the complainant began apartment. She first obtained the name of the respondent Russell Fitt Real telephone Estate from the book’s Agency yellow the respondent thereafter she pages spoke Marion J. employed by Agency who Fanning was its her con- apartment telephone first specialist. During versation she learned Mrs. had at Fanning least two listed two-bedroom one over a apartments, at a store rental *4 $135 month in a and per garden one apartment complex a $200 at rental approximately per month. But Mrs. her told that the owners would Fanning not rent these apart- single ments to Mrs. girls. Fanning would not show the to she apartments her nor would her the give names or of the apartment addresses owners or the superintendents. all, had four complainant the telephone conversations with Mrs. and substance of Fanning the each conversation
[403] n same, a unmarried she was namely, young, since her. not available to apartments female were never, with the spoke Mrs. that she testified Fanning she did speak over the but that complainant telephone, that, she a She said told single her on occasion. personally would that she be. and about the complainant apartments were not the .owners to show them to her happy although She said inclined to rent young, to two unmarried women. be offer to shown her that declined complainant irreconcilable, Examiner, to the apartments. pointing complainant differences between the testimony “with Mrs. noted that she was the testi- Fanning, impressed that monial candor and sincerity” complainant Mrs. of her she found conversation Fanning’s description “inherently with incredible.” She made the fact “despite respondent that that finding had of two within apartments 'available Agency listings ; which were suitable for complainant’s price occu- range, women, complainant two by denied pancy single young view and to rent these apartments by opportunity because she female and un- is respondent Fanning young, with a apartment to share the friend married and wished simliarly situated.” Blanos,
Mr. field who was representative employed and was Rights twenty-three years Divison on Civil old with over Mrs. spoke Fanning testified he single, and told her he- a salesman was look- telephone was. for himself and for a two-bedroom another apartment ing one-, him two- and friend. She told three- male young available that' she would be were apartments bedroom day. with later The Ex- have him check her happy of Mr. the treatment Blanos aminer contrasted and concluded that while “un- the complainant treatment roommates were not either regarded respon- male related facie objectionable ten- prima principals or their dents Levy, were.” Mrs. field ants, repre- female roommates Rights, Division on Civil testified by the employed sentative *5 of the verified the in- copy complaint that she served Rnssell A. Fitt at the Fitt matter on the respondent stant Mr. Fitt read the and said “What shall complaint Agency. we people apartment get I do? When we place single just I think trouble. She looking into trouble. she The referred didn’t really apartment.” want that Examiner Mr. Fitt did not to this the fact that testimony, during hearing, sup- he was testify present though Fitt had “respondent knowledge of her port finding of, in the acts of Mrs. and concurred participated Fanning and is with her for them.” responsible equally testified that Mrs. discrim- complainant Fanning’s and caused her ac- inatory treatment of her humiliated her stated that tual and emotional disturbance. She physical her conversations telephone covered during period she was so suffered such upset Mrs. Fanning consult her stomach distress that she was obliged physician on Her mother Mrs. Helen Zahorian testi- several occasions. when the came home after conversa- complainant fied that tions with would eat very upset, Mrs. she was not Fanning about headaches. The told her .complained that she could not have the apart- mother understood she ment because she was and that single she “felt this an awful think thing such to her happen and to be- cause she wasn’t married she couldn’t have an apartment.” Mrs. Zahorian her accompanied daughter on her visits to her who told her physician “it was all nerves and he wasn’t her going put through procedure of series of until tests he could determine that this wasn’t just nerves.” when the Ultimately complainant abandoned her efforts to obtain a Montclair apartment for herself and her friend on settled a one-bedroom apartment for herself which obtained in Paterson, she her physical and emotional dis- terminated; tress apparently her mother testified that since she obtained her apartment “she has been fine.” *6 respon the Examiner the the before hearing
During not directed was that discrimination dents contended unmar was female she because complainant against of complainant the combination but was against ried admittedly while the law pro they urge her friend and that to an an apartment to rent from refusing hibits landlord does not unmarried, it is she female because applicant an to apartment rent from to refusing a landlord prohibit found Examiner unmarried. The women who are two young complainant against was discrimination that there “the apart status and that and marital on her sex grounded if even from complainant have been withheld ment would use.” In for her to it exclusive had rent willing she been which we view, addition, Examiner expressed in 1970 as last amended statutory provision, that the agree, A. S. a real estate (N. 10:5-12(h) (1)), prohibiting or employee any “person broker its from rental to refusing “marital or because of status sex” group persons” contention. As the Ex clearly respondents’ negates the 1970 aminer it: “There can no but that put question intended, Law Amendment of the Discrimination Against alia, inter same insure the of two sex persons to rights who into a unit and housekeeping constituted themselves furthermore, entirely that such an is arrangement unexcep unmarried practice young working tional. It is common that kind See Gabe make girls living arrangement.” N. J. Collins Inc. v. 112 Realty, City Margate City, Super. v. Bor 349 Div. Kirsch Co. Holding (App. 1970); cf. ough N. J. 241 Manasquan, (1971). After finding act of discrimination in violation N. J. A. had been 12(h) (1) committed by re :5— Mrs. spondent Fanning, respondent Russell Fitt in Mrs. his concurrence Fanning’s action was re equally and that sponsible, pursuant doctrine of respondeat superior the Russell Real corporate respondent Fitt Estate was also Jones Agency responsible (cf. v. Haridor Realty 37 N. J. 384, 395-396 Corp., Jackson v. (1962); Concord 54 N. J. the Examiner Company, (1969)), pro compared $135 ceeded with She damages. findings which had been month two-bedroom Montclair per apartment month one-bed per denied to with the $150 the complainant obtained ultimately Paterson room which she apartment were bedroom, they that, concluded from the extra apart in size, facilities and comparable accommodations. She de termined that fair market value the Montclair apart ment $150 month and per entitled to for 'doss of her which amounted bargain” for the one-year $180 lease of the Montclair requested apartment. that her dam Though complainant suggested in this connection should have been fixed in a ages greater *7 sum, that has not been and is not now point pursued before us.
The Examiner that, found in addition to the aforemen- $180, tioned the complainant should a receive compensatory sum for the humiliation and pain and suffering caused to Builders, her. Gray Inc., She cited Serruto 110 N. J. Super. 297 Div. (Ch. 1970), as instance where, though there were no circumstances, aggravating the sum of $500 was awarded to' a as plaintiff compensatory for damages humiliation suffered him a by result of racial discrimina- tion and she recommended the Director of the Division on Civil that an Rights award to the complainant Sandra Zahorian in sum the of $750 would be appropriate “in view of the nature her response to the insult as well as the nature of the insult itself.” Director, in his Findings, Determination Order, and approved the Examiner’s findings on discrimination and directed that the complainant be paid the of $180 sum for “economic loss” and the sum of $750 for “actual pain caused suffering” to the complainant the by respondents’ action. discriminatory addition, In the alia, ordered, Director inter that respondents cease and de- sist from discriminatory actions, submit Division list of vacancies for every thirty days two years, advise the Division of names, addresses, sex ages, and marital status days for thirty for rentals every applicants prospective order and written instruc- years, post copy two for of two years. for a period tions compliance Division that to the Appellate On the respondents’ appeal Division’s finding that the record supports court found complainant action respondents against of discriminatory also found that It of her sex and marital status. because $180 sum for awarded the properly complainant Division had However, determined that economic it loss. award to the to make jurisdiction any no Division’s it vacated the accordingly pain suffering Division set addition, her. the Appellate $750 award to ad respondents Director’s order aside prospective ap as to identities of the Division vise order Director’s set aside the and also plicants In grant of vacancies. of lists and the submission posting further re our was not certification concern ing discrimination; event, on view the factual findings record, have are satisfied that the factual we examined testimony, and supported were findings adequately Clover Hill Swimming not disturb them. See shall therefore Goldsboro, Club N. Robinson v. (1966); al., Brook Manor et 101 N. J. Branch Apartments, Super. denied, 52 J. 487 Div.), (1968). (App. certif. concern related the Division’s primarily scope Our to award compensatory additionally power Division’s action in nullifying portions the Appellate *8 had in the granted which the Division exercise other relief it. N. J. it understood S. A. 10: jurisdiction of its See 5-6; 10:5-17; N. A. Jackson v. Concord J. S. Company, Inc., 113; Cherry Apartments, J. Polk v. Hill 54 N. supra, Brook N. J. Robinson Branch Manor (1972); 62 55 al., J. et N. 117. supra, 101 Super. Apartments, on the wish to comment attack Preliminarily, we on the oral during argument which the made respondents They Division. seemingly before the hearing nature J. 10: S. A. of functions (N. the concentration urged that 408 Larsen, et
5-1 re 17 N. J. seq.; 564 Super. Div. (App. Blum, In re 1952); 109 N. J. 125 Div. Super. (App. 1970)) and the admission of A. hearsay testimony (N. S. 10: 5-16; Cavicchia, Mazza v. 15 N. J. 498, 509 (1954)) ren dered the unfair. But proceedings fundamentally study of the record has us that the was convinced conducted hearing within fairly well controlling legal principles. See Co., David v. Vesta 45 N. J. 301, 323-328 (1965). Acting under express statutory direction the General Attorney ap of the Commission on with the Civil pointed, approval Examiners composed Rights, panel Hearing persons law for at five years. licensed to least S. practice 10:5-8 While such not match the ideal of {l). may panel of hearers” referred to in the truly corps “independent Cavicchia, to Mazza v. 15 N. J. at it supra, ap dissent insure a beyond measure of pears independent fact-finding New available other administrative generally Jersey Larsen, 564; In re 17 N. J. supra, See agencies. Super. cf. Davis, Law 13.02, Administrative Treatise p. (1958), § 457; Vol. Aronsohn, “The Need for Supp. p. Corps Examiners in State Administrative Independent Hearing 96 N. J. L. J. 80 We find no (Jan. 1973). Agencies,” her basis for the criticism of the Examiner and respondents’ Her complainant’s rulings during hearing. receipt her conversations with testimony respect telephone even under strict evidential clearly Mrs. Panning proper Robinson v. Branch Brook Manor Apart principles (cf. ments, McCormick, al., 121; et N. J. at supra, Super, Evidence and her of the cor p. 1972)), receipt (2d with re roborative mother testimony by complainant’s visits to her spect complainant’s upsets physician also tendered in the ad surely proper, purposes :5-16; N. J. A. 10 Mazza ministrative below. See hearing Cavicchia, 15 N. J. 509. supra, at We come now to the provisions the Director’s order which were nullified the Appellate Division. The order required respondents submit to the Division, every *9 and for lists of vacancies records of years, two thirty days a and written instruc and of the order copy applicants post for for a two compliance period years. Appel tions whatever, struck Division, without discussion these late describing relating simply requirement requirements, “un and the other as requirements applicants “improper” 54 N. Company, supra, Jackson Concord necessary.” to va a that records upheld relating we requirement made available to the and rentals be maintained and cancies In Polk Hill Cherry Apartments, Division inspection. Inc., 63 N. J. we a direction supra, sustained that a furnish, years, for two current every thirty days landlord in Robinson v. available for rental. And list of apartments al., Brook et 101 N. J. Apartments, supra, Branch Manor a 117, the Division sustained direction that Super. Appellate terminated, that be discriminatory instructions practices order, employees comply circulated Division’s order be suitably posted. that copy with remedial powers The statute vests the Director (N. which have been S. broadly expressed legislatively 10:5-6; N. J. A. 10 been broadly applied and have :5-17) N. J. Jackson supra, v. Concord judicially. Company, had they 113. Here the engaged denied respondents violative the recent amendments discriminatory conduct (L. and marital status discrimination which related to sex her denial under c. 80) Fanning placed and respondent the Division’s But the evidence adequately supported oath. remedial there had been such conduct finding it and insure which would be to terminate required steps within the Direc largely were compliance future matters only him not transcript discretion. He had before tor’s also earlier con instant matter but the record Fitt respondents Fanning order against sent His conscientious unlawful discrimination. matter involving sub and the posting requirements determination were applicants of vacancies records of of lists mission with ju- not be interfered should necessary appropriate *10 in the absence of arbitrari showing dicially illegality, no like; there was such and ac showing ness or the here should have stricken the Division not Appellate cordingly Company, supra, Jackson v. his See Concord requirements. Inc., Hill 113; Apartments, supra, J. Polk Cherry 54 N. Brook Manor 55; Apartments, J. Robinson v. Branch 62 N. Builders, al., 117; N. J. et 101 N. supra, Super. cf. Blair, N. J. Association Managers Owners and (1972).
Finally we turn the to Director question whether-the had to authority award, as did, $180 he not the sum only for economic loss but also in the compensatory sum damages for $750 the and to which pain the suffering had Jackson subjected. been v. Concord supra, Company, N. J. 113 sustained the award Director’s com- jurisdiction pensatory for the damages by economic loss suffered the person discriminated against; furnishes holding ample this for $180 award support and item accordingly pre- no However, sents further Division problem. Appellate stated that it did not Jackson “to mean understand that the Division can a general make such here award ‘pain It on to if suffering’.” went suggest Division were allow minor permitted awards for pain suffering, the next be step to award substantial would amounts and permanent “serious or mental dis- physical as the ability expressed result of discrimination.” It view that “such matters are better reserved to traditional on court proceedings”; ground stated without more it $750 struck the Division’s award the complainant. The Division on Civil was created Rights Legisla- ture with in N. express J. S. 10:5-6 “to power prevent and eliminate” and “to take other actions” unlaw- against ful discrimination. Prior to 1970 the re- discrimination “race, creed, ferred to color, related to national origin, 1970, or L. c. ancestry age”; since enactment of ef- 2, 1970, fective June discrimination referred to includes “marital status or sex.” We reject respondents’ sugges- “marital status sex” of the words omission that the tion deliberate; -was “other actions” words connection of its extent sweeping L. c. 80 and history us satisfy or sex” “marital status references to amendatory may sup- properly that the omission was inadvertent State, 1 N. Iadone v. construction. See plied judicial Furthermore, the more 1923). Misc. 283-284 Ct. (Sup. A. 10:5-17 J. S. found in is crucial statutory language which all of discrimination admittedly findings applies discrimination; that sec- sex marital status including finds that where the Director part tion provides pertinent unlawful discrimination shall issue cease desist he *11 action, but order “take affirmative not including, such to, employees, limited or of upgrading reinstatement hiring, as, with or ... in the of judgment without back pay, of statute. director, will the the the effectuate purpose” In Jackson v. Concord 101 J. Company, N. 126 Super. 1968), Div. (App. Appellate Division held that IV. J. 10:5-17, A. aforequoted S. even when language read in the context of the of the Law Dis goals Against J. A. (N. crimination 10:5-1 el seq.), S. was insufficient to authorize the to grant Division compensatory damages for loss the un by suffered as result of lawful him. On appeal, we reversed discrimination'against and sustained of a sum the Director’s award representing loss. the course of his complainant’s- out-of-pocket for all of opinion members of the participating Court. Justice Hall noted whether that the basic was question intended such to the Director Legislature give power J.N. S. A. that it was not although granted expressly 10:5-17 it was in the of fairly implied light “broad of section” and the “overall language design Builders, 54 N. J. N. J. Owners and the act.” at 126. See Blair, 60 J. Managers 330, N. 338- supra, Association &c., Owner's, 340; J. C. Assoc. v. Coun Chap. City Prop. cf. cil, 55 J. v. New Jersey N. State National (1969); Co., Bank and Trust He (1972). noted is he dealt with as a further the term “include” this and that limitation” not of word “enlargement A. 10:5-17, where in N. J. it especially true S. followed not to” the illustrations phrase “but limited 54 N. J. Dee at 126-127. See Fraser Robin given. Day 44 N. Camp, 485-486 (1965). N. J.
Justice in Jaclcson stressed opinion 113) Hall’s (54 enforcement legislative intent to create effective can which would serve towards eradication “the agency cer of discrimination” would and whose remedial actions but not involved serve the interest the individual only 124-125; Robinson N. J. public also interest. 54 at see al., v. Branch Brook Manor et N. J. Apartments, supra, 101 at 124. He Super, pointed out that there was no constitu tional objection to legislative authorization of money dam as “incidental relief” ages to administrative cease and desist orders N. J. at view (54 that the 126) that here there was such authorization legislative finds not support only from the breadth the terms in N. J. A. S. 10:5-17 bur from also other sections of the N. J. statute such as 10:5-27. That section provides the administrative pro ceeding shall be while exclusive it is pending final administrative determination shall exclude “any other action, civil criminal, based on the same grievance the individual concerned.” Thus it appeared that the com *12 in Jaclcson plainant would be barred from else recompense where and the Court that suggested it be might in fairly ferred from that this the Legislature understood “the that Director had power to award such 54 recompense.” at 128. ^ Although approach Jaclison N. J. in (54 points 113) most towards forcefully author recognition Director’s make ity to an incidental award for and such pain suffering, as here, that allowed Jaclcson respondents that urge should now strictly facts, confined to an its own namely, award for economic loss. no They advance significant argu ment other than that support summarily suggested
413 au wit, recognition Division, to Appellate and suffering pain incidental minor or to thority grant for “serious claims lead to substantial ultimately may awards which would disability” mental physical and permanent reserved “better adversary litigation entail extensive entirely seem it would But court proceedings.” traditional authority of administrative evident that the recognition with it carry not need incidental awards make minor or severity where, because a matter to entertain authority extensiveness injury consequential and the become primary has claim, the item of damages there Surely reverse. than the relief incidental rather other the Legis while concluding incompatible is nothing authority have Director would lature contemplated and suffering for pain award compensatory be confined would loss, authority his economic well as relief” (Jack “incidental only which constituted truly award son, item.* primary N. J. rather than 54 at 126) supra, furtherance of the courts high-minded statutory goals, have sustained incidental awards forthrightly in other states humiliation and without encounter pain suffering envisioned Division. 8 spectre Appellate See ing L. J. 102 35 L. Rev. Albany 782 (1972); Willamette N. G. L. Rev. 221 (1970). 49 Thus New York’s (1971); Y. Exectitive Law 297(4) (c) (ii) (McKin statute (N. § present incidental and nonincidental should no *The lines between thoroughly difficulties. The law is accustomed to similar lines serious (Prosser, Torts, p. g., as, 145 e. reasonable and unreasonable between (4th 1971)), (3A seq. ed. between substantial and insubstantial et 704, p. important Corbin, (I960)), “the 318 between § Contracts Youngs Kent, (Cardozo, & v. N. Y. the trivial” in Jacob 230 889, (1921)). pointed out, 239, N. E. 891 As Holmes so often 129 generally degree, life, are differences of law as in differences Mississippi, Panhandle be drawn somewhere. See Oil Co. lines must 857, 218, 223, 451, (1928) ; 72 L. Ed. 48 S. Ct. 859 U. S. 470, States, L. 213 U. S. 29 S. Ct. Ed. Keller United ; Lerner, (1909) Faith Mind and Justice Holmes (1943). *13 414 Laws, 18, Consol. c. which
ey’s
authorizes
Com
1972))
missioner of
Division of Human
to award
Rights
com
unlawful
dis
pensatory damages
persons aggrieved by
criminatory conduct has been
to allow not
applied
only
for
awards
economic loss but also awards for incidental
humiliation,
In State Commission
pain
suffering.
and
for
Human
v.
D.
N. Y.
107,
35 A.
2d
313
S. 2d
Rights
Speer,
rev’d,
555,
297,
28
29 N. Y. 2d
Y.
(1970),
S. 2d
324 N.
N. E.
$500
272
2d 884.
the Commissioner awarded
(1971),
E. Gaynus
John
damages
complainant
“as compensatory
for the
he had endured as a result of
pain
suffering
rental
discrimination in connection
respondents’
a
premises.”
Division
divided court
Appellate
held
allow
that while the Commissioner could
out-of-pocket
award
for mental
or
anguish
he could not
expenses
damages
but the
reversed and re
injury
Appeals summarily
Court
to whether “the
manded the matter for
determination as
29 N. Y.
award for
the evidence.”
damages
justified by
E.
555,
297,
2d
324 N. Y.
2d
272 N.
2d 884.
S.
See State
v.
Y. 2d 558,
Division Human
29 N.
324
Rights
Luppino,
Y.
2d
E. 2d
298,
N.
S.
272 N.
see also Italiano
(1971);
Rts.,
v. New York
Ex.
Div. H.
36 A. D.
Dept.,
State
2d
York
1009, 321 N. Y.
2d 422
and New
Com
City
S.
(1971)
v. Knox
Realty
mission on Human
Misc. 2d
Rights
Corp.,
806, 290
Y.
2d
1968),
S.
Ct.
where incidental
(Sup.
humiliation,
for
respectively
$250
$100
awards of
pain
Chance v. Frank’s
were
Beauty
suffering
upheld; cf.
Salon,
Y.
35 A. D. 2d
316 N.
S. 2d 236 (1970); State
McGinnis,
A. D.
Division
Human
2d
Rights
322 N. Y.
2d 822
(1971).
In Massachusetts Commission
Against Discrimination
Franzaroli,
357 Mass.
415
The
actually
by
for other costs
incurred
him.”
Commission
award
for
mental
$250
an incidental
the
distress
granted
frustration,
from the “considerable
resulting
anger
the award
caused the complainant.
sustaining
humiliation”
that,
held
in
statute
court
the illustrations
although
not confined
loss,
related to economic
the Commission was
such,
to awards for
but could allow incidental awards
loss
mental
in
cases
appropriate
out that
suffering, pointing
had
allowed
comparably
Massachusetts courts themselves
con
from
resulting
wrongful
for mental suffering
Lennox,
70,
155 Mass.
In the light of all of the we foregoing have no hesi tancy the Director determining acted fairly within the orbit of the legislative to him delegation when he awarded *15 $750 complainant as incidental compensatory damages for the pain inflicted on her. suffering There was ample evidence to establish causation and while the al amount lowed well might have been fixed in a lesser sum not, we are in the values, of light current prepared to that say it was so unreasonably as to call for high its reduction at our level. Nusser appellate See v. Parcel United New Service of York, Inc., 3 N. J. 68-70 Super. 64, Div. (App. 1949); v. Andryishyn J. Ballinger, 61 N. Super. 393 (App. denied, Div.), 33 N. J. 120 Hacker v. Stat (1960); certif. man, 105 N. J. Super. 385, 395-396 (App. Div.), certif. denied, 54 N. J. 245 N. J. A 6; (1969); Gray cf. :1— Builders, Inc., Serruto 110 N. J. supra, 297. We Super. find that the Director’s order was in all within his respects authority and was supported the evidence. The Appel late Division should not have altered it but should have full; sustained it in to that end its is judgment hereby: Modified, with direction that the Director’s order be rein- stated. in
Hall, (dissenting I am in part). disagreement with of the portion majority opinion which finds power in the Director of the on Division Civil Rights to make, connection with the granting specific relief and recom- of economic pense loss, “minor or incidental” awards money damages to complainants for “humiliation” and “pain I will suffering” (which refer to generally damages The caused acts discrimination. distress) for mental to make authorization however, no finds, legislative majority is severe injury consequential when the claimed awards such and extensive.1 is purely to award-damages the Division power divined to be intent, necessarily here of legislative
question intent view, In my statutory language. from the largely mental distress award to authorize agency — — is so matter2 an important public policy amount any be should I am convinced the power doubtful extremely it in plain bestows until Legislature unless and denied Park Evergreen Burlington County unmistakable terms. N. J. (1970). Hospital Mental Cooper, Law Against mind that constantly kept must It et Discrimination, seq., 8. particularly, A. 10 :5-l to ef- N. J. 8. 10:5-17, is section, designed remedy action, spe- speedy, administrative fectuate, by expeditious arising practicalities may a classification from 1 It be noted ones, awards, big power are so serious but not make small possibly Legislature properly not have could feel the that one can figure Apart from the matter such distinction. intended majority silent, drawn, is as to which the line is to be at which consequential large that, they claim when there is a must mean *16 plenary bring aggrieved party damages, personal has a suit in to the Gray expense. sought, See at his own all the relief courts for the 1970). Super. (Ch. Builders, Inc., He N. 297 Div. will Serruto statutory proceeding, right give up administrative his to the have to perhaps important Division, prosecuted more him the with its for specific advantage obtaining speedy from relief the dis of attendant criminatory have to make in advance the choice And he will action. specifies A. N. 10:5-27 that travel because which road to of pending procedure “shall, be exclusive” and while administrative the action, any exclude other final therein shall determination that “the grievance criminal, of the individual con based on the same civil cerned.” questions inappropriate a mention that when 2It to is not all, legal should for mental distress arise at what cause of action proved allowed, they damages should and fixed and how should be Prosser, years (4th plagued for on See Torts ed. end. have 1971) courts 12. § individual discriminated cific relief to the en- and from prevent discriminating party to against in future. in such acts others wrongful against gaging is directed to agency investigate prosecute proceed- The objectives. behalf of to those complainants accomplish on ings a thus not one to for conven- clearly provide The scheme is suit, delays, tional law with all its before trappings tribunal. of the Interpretation scope administrative in extent of the section must be reached remedy light for careful these foundation It calls adherence principles. in to the of the language this limits regard imposed a broaden rather than effort to legislation judicial scope to convert into remedy agency section proceeding —(cid:127) a full law bound to as soon happen suit result fledged permitted. for mental distress are pecuniary damages majority heavily The relies most on in Jackson language Concord N. J. 113 Company, (1969), which that held the statute indicated a sufficiently delegation power the Director award damages economic, out-of-pocket from forbidden loss resulting discriminatory acts. The ques- tion was whether the had agency authority go beyond spe- any cific relief and make award at all. monetary I said What in that must be read and considered that context. opinion damages beyond The matter of those for economic loss was involved, reserved, specifically not rationale not directed to it. 54 N. J. at 128. opinion The basis for decision to allow awards for economic was found in clues from the language, particularly loss remedy section, in the J. 8. which used would :5— if for economic purpose recompense have no loss was not of these analysis provisions intended. is set at forth 126-128, 54 N. J. at need not be here repeated. Suf- say section, it now to language my fice offers no clue allowance of belief, mental amount was at all intended. suffering Law Discrimination, our Admittedly Against as it pres- and no model exists, patchwork job is ently clarity *17 1945, c. in as (L. 169) It started ont many respects. and eliminate of discrimination prevent practices measure to creed, color, origin in of national race, because employment law, It New York ancestry. or after similar patterned of never contained the provision but has state’s specific 297 (4) (c)) authorizing Y. Executive Law (N. enactment § of the person “awarding compensatory damages ag- This continued is most to me. omission grieved.” significant 169, 16, c. remedy (L. 1945, The section ob p. 596), § from National Labor derived Relations viously originally Act of years some before 29 U. (now 8. G. 160(c)), § in employment authorized discrimination situations, as N. S. A. 10:5-17 still does today, cease and desist orders action, “affirmative including, to, but not re limited hiring, instatement of with or upgrading employees, without back pay, or restoration to membership, any respondent labor as, ... organization, commissioner, judgment will act, effectuate purposes of this re include a of report the manner of quirement compliance.” (Em phasis supplied). italicized phrase was pointed to Jackson, 127, at indication of authority economic loss. recompense Importantly, I believe, United States Supreme Court has said that the similar in the National language Labor Relations Act did em not federal power the agency administering that statute award recovery of consequential personal damages victims Union, unfair labor International practices. United Auto mobile, Agricultural Implement Workers Aircraft Russell, 634, America 356 U. 645-646, S. Ct. 2 L. Ed. 2d 1039 (1958). patched
As our statute was years over the by amendment other to forbid bases of discrimination cover places accommodation and public as well as housing employment Jackson, 54 N. J. (see at n. 3), parallel patching various done to other law, sections including section, remedv to include the But expanded none scope. changes gave these indication intent to grant agency *18 430 than economic loss. The to award other damages'for
power
1966,
17,
section
c.
remedy
(L.
7),
amendment to the
last
§
Jachson, 54 N. J.
137-138,
referred to in
at
quoted
to
the ascertainment of
only
clarify
amounts to
effort
loss in
situations.
non-employment
economic
I
on decisions in other states.
The
also relies
majority
in
authority
them substantial
the light
do not conceive of
as
York,
New
represented by
our
State
statutory, language.
Y. 2d
555,
Division
Human
29 N.
Rights
Speer,
N. Y.
2d
272 N. E. 2d
rested its result
(1971),
S.
statutory
specifically
on the
referred .to
previously
language
which
award of “compensatory damages,”
empowering
all
damages.
construed to include
except punitive
Massachusetts
statute, which was involved in
Massachusetts
Franzaroli,
Discrimination v.
357 Mass.
Commission Against
I with the on other agree opinion aspects would, therefore, modify I judgment Ap- case. except Division- as that directs as to the opinion pellate for mental damages suffering. award of joins opinion. Lewis this Judge D., P. A. Temporarily Assigned (dissenting Coneord, I of Justice Hall. I join fully opinion in part). however, add another as to the would, thought unlikelihood this statute to administrative by permit intent of legislative mental whether suffering, generally recovery extent allowed majority limited opinion. to the or reads, in part: 10:5-37 * “* * practices and acts declared unlawful section 11 of act, procedure shall, provided pending, this herein while ex- ; any clusive and the final determination therein shall exclude other action, criminal, grievance civil or based on the same of the in- Nothing exclude, bar, dividual concerned. herein contained shall or any right action, criminal, may otherwise affect or civil or which independently any right against specific exist redress relief employment practice from unlawful or unlawful discrimination.” *19 the Reading as an I construe foregoing entirety, it to mean victim of discrimination may seek relief for a par- ticular remediable in grievance the or in the courts agency if but he takes judgment for that in the he grievance agency not also seek relief in may for it the courts. While the word is “grievance” susceptible the meaning wrongful offender, here, conduct of the the context of use the its in the act of the presence last sentence above and quoted principles presumptive reasonableness of intent legislative in this instance “grievance” par- means suggest ticular from injury complained of con- flowing wrongful Thus, duct. of an discriminatory deprivation apartment rental is one mental grievance and distress consequent upon the refusal to rent is another. also
However, say Legislature fair to it seems above that ag- contemplated by provisions quoted relief, should for if to resorting agency grieved person, to jurisdiction kind it has any whatever relief there seek in the him, judgment agency and that once he takes award in the courts for re- any barred from recourse he should be But have secured the agency. lief of the he type might from to the agency would not be barred both going he latter if of relief available the courts there were type but not the former. is majority, the formulation of the relief agency
Under available for for mental but confined to damages distress “minor or incidental” substan- recovery, presumably barring awards1 if no fairly
tial even more than damage compensa- for humiliation and tory psychological accompanying If of N. J. injury my caused. construction 8. psychiatric sound, 10:5-27 outlined is decision majority as above vitally condition operates availability necessary remedy for relief specific (award efficient administrative victim apartment, forfeiting rental of on the etc.) any right of substantial damages tribunal mental recovery discrimination. I cannot conceive upon suffering consequent would wanted such a result. Legislature have On hand, the otHer the act not confer construing juris- diction relief for for administrative mental all would distress at allow both his get relief specific agency before the his tort-like mental ox in an court. large small, appropriate This, it damages, me, intended, is what Legislature seems to as fairly one can such from the objectively statute, discern intent its and all other indicia. history purposes relevant For Justice Justices Weintbaub, modification —Chief and Pboctok —4. Jacobs, Mountain *20 Dissenting part and Judges Coneokd Hall, —Justice Lewis —3. 1 By analogy suffering to the law for mental in other contexts, compensatory reasonable awards of thousands of dollars for gross arising discrimination, especially involving insult out of if psychical injury, readily are conceivable.