IN RE JUVENILE DETENTION OFFICER

Decision Date11 December 2003
Citation364 N.J. Super. 608,837 A.2d 1101
PartiesIn the Matter of JUVENILE DETENTION OFFICER UNION COUNTY.
CourtNew Jersey Superior Court

Loccke & Correia, Hackensack, for appellant-intervenor, Union County No. 8, AFL-CIO, IFPTE (Michael A. Bukowsky, on the brief).

Peter C. Harvey, Attorney General of New Jersey, attorney for respondent, Merit System Board (Elizabeth M. Laufer, Deputy Attorney General, on the brief).

Garrubbo, Romankow, Rinaldo & Capece, Berkeley Heights, for respondent, County of Union (Frank G. Capece, of counsel; James J. Seaman, Secaucus, on the brief).

Before Judges NEWMAN, FALL and PARRILLO.

The opinion of the court was delivered by PARRILLO, J.A.D.

Appellant Union County Council No. 8, AFL-CIO, IFPTE (the Union) appeals from a final administrative decision of the Merit System Board (Board) that granted respondent Union County's (County) request for eight bona fide occupational qualification (BFOQ) designations for male-only Juvenile Detention Officer (JDO) positions. At issue is whether the County has sufficiently demonstrated a BFOQ defense or justification to state and federal proscriptions against sex discrimination, based on the privacy rights of juvenile male detainees, to warrant the exemption relief it seeks. We conclude that a proper showing has been made and accordingly affirm the Board's decision.

These are the pertinent facts. On November 26, 2001, the County sought approval from the New Jersey Department of Personnel (DOP) to fill eight available JDO positions exclusively with males. Its application, therefore, requested eight BFOQ designations, pursuant to N.J.A.C. 4A:4-4.5, for male-only JDOs. These positions are in the male wing of the Union County Juvenile Detention Center (Center) where juvenile detainees between the ages of 11 and 17 reside, pending disposition of their cases. At the time, the Center housed 64 male juvenile detainees and 8 female juvenile detainees, and employed 21 male and 8 female JDOs.

To substantiate its request, the County explained that to ensure the proper level of care, custody and security at the Center, the JDOs in the male wing were required to maintain constant visual contact with the juvenile detainees, even when the detainees were showering, changing clothing and using the toilet, and were required to "perform intimate searches" of all detainees on a daily basis, occurring at bedtime, after visiting hours, and immediately prior to showering. As to the latter, the County further explained that seven JDOs were required when the male residents were showering:

Two staff stand in the shower area itself to maintain the required constant observation of the residents in the shower. One remains in the doorway to supervise entry and exit from the shower area. The other is positioned in the shower room with the residents for security reasons.... The remaining three on staff are stationed in the male wing conducting strip searches on residents preparing to enter the shower and issuing clothing to the residents leaving the shower. The need for this close observation and physical contact with nude male residents precludes the use of female juvenile detention officers in the male wing.1

Consequently, the County's application asserted:

To ensure the resident the right to privacy and that the psychological well-being is maintained, we prohibit JDOs of the opposite sex from conducting intimate searches, or observing residents while showering or toileting.

The County's application also detailed alternative options considered, but rejected as unfeasible. The first option included construction of a privacy screen in the male shower area, but was deemed impracticable since the shower area was not structurally amenable to such a change, and would involve an "inordinate [construction] expense" as well as an increased security risk which would accompany use of the screens.

The second alternative called for a shift in the "staffing pattern" in conducting strip searches at shower time, bedtime, and after visiting hours. Specifically, the County considered creating an all-female third shift, but ultimately rejected the plan because such a change would merely reshuffle the existing staff pattern, neither increasing the number of female officers, nor resolving the need for a specified number of male JDOs whose presence to observe or handle male detainees while nude was simply too continuous to schedule otherwise.

The final option involved placement of privacy screens around the toilet area in each dorm area. This proposal was ruled out because, beyond the inordinate expense to be incurred, such privacy enclosures would create a security breach by impeding the JDOs' ability to observe the residents.

As required, the County filed its application with the DOP's Division of Equal Employment Opportunity and Affirmative Action (Division) pursuant to N.J.A.C. 4A:4-4.5(c). The Director of the Division denied the application by letter of January 28, 2002, stating that "it is not permissible to refuse to hire an individual woman or man on the basis of stereotyped characteristics of the sexes", and suggesting instead, without further explanation, that the County simply reschedule the showers or use "temporary measures," such as "portable screens," to address the privacy issues.

The County timely appealed to the Board. In connection with the appeal, the County provided the Board with a similar BFOQ application for male-only JDOs at the Center, filed on December 22, 1992, which was approved by the DOP on March 23, 1993.

In a written opinion issued on September 13, 2002, the Board reversed the Director's decision and granted the County's request for eight male-only BFOQ designations. Utilizing a two-prong test, the Board concluded that (1) the BFOQ designations sought by the County were needed based on the particular job requirements; and (2) because of the nature of the Center's operations, no other reasonable accommodation could be made to eliminate the need for these exemptions. As to the former, the Board found that the juvenile detainees possessed a privacy right not to be viewed or handled by members of the opposite sex while being strip searched, showering or using the toilet, and that this privacy interest is "heightened" given that they are "at an age when they may be particularly vulnerable to serious psychological harm" if viewed naked by adult members of the opposite sex. As to the second prong, the Board found that the alternative solutions explored by the County were not feasible, and those suggested by the Union were not shown to be any more viable or acceptable.

On appeal, the Union argues that the Board lacked jurisdiction to review the matter since the Director's decision was final, and that in any event, the Board's decision was arbitrary, capricious and unreasonable.

We may dispose of the first contention summarily. As already noted, any request for BFOQ designation by the appointing authority must initially be filed with the Division. N.J.A.C. 4A:4-4.5(c). However, nothing in its enabling legislation, N.J.S.A. 11A:7-1 to -13, states that the Division's decision constitutes final agency action. On the contrary, N.J.S.A. 11A:2-6(b) authorizes the Board to review all appeals within the DOP, not specifically set forth in N.J.S.A. 11A:2-6(a) or N.J.S.A. 11A:2-11, de novo on the written record and render a final administrative decision in those matters. See Henry v. Rahway State Prison, 81 N.J. 571, 576, 410 A.2d 686, 688 (1980)

; West New York v. Bock, 38 N.J. 500, 519, 186 A.2d 97, 107 (1962). Since the review of BFOQ requests is not set forth in N.J.S.A. 11A:2-6(a) or N.J.S.A. 11A:2-11, it is clearly an appeal in which the Board may render a final agency decision on the written record. The Union's contention to the contrary is without merit.

It is equally well-settled that the Board's decision will not be upset unless it is arbitrary, capricious, unsupported by substantial credible evidence contained in the record, or in violation of express or implicit legislative policies. In re Taylor, 158 N.J. 644, 656-57, 731 A.2d 35, 41-42 (1999); In re CAFRA Permit No. 87-0959-5, 152 N.J. 287, 304, 704 A.2d 1261, 1269 (1997); Barry v. Arrow Pontiac, Inc., 100 N.J. 57, 71, 494 A.2d 804, 811-12 (1985); Henry v. Rahway State Prison, supra, 81 N.J. at 579-80, 410 A.2d at 690-91. When reviewing factual findings of the Board, we are not free to substitute our own judgment as to the wisdom of a particular administrative action. Flanagan v. Civil Service Dep't, 29 N.J. 1, 12, 148 A.2d 14, 20 (1959). On the contrary, we must give weight to the presumed expertise of the administrative agency when reviewing its decision. Shahmoon Industries, Inc. v. Department of Health, 93 N.J.Super. 272, 282, 225 A.2d 699, 704 (App.Div.1966), certif. denied,49 N.J. 358, 230 A.2d 392 (1967). Furthermore, we generally defer to the agency's interpretation of its own enabling legislation, as well as regulations promulgated to implement the statute which the agency is charged with administering. Medical Society v. Department of Law and Public Safety, 120 N.J. 18, 25-26, 575 A.2d 1348, 1352-53 (1990); Appleby v. Civil Serv. Comm'n, 190 N.J.Super. 249, 255, 463 A.2d 346, 350 (App.Div.1983). We, therefore, address the Union's remaining contention against the backdrop of these governing standards.

Both state and federal proscriptions against sex-based discrimination recognize a limited BFOQ exception. The New Jersey LAD provides in pertinent part:

It shall be an unlawful employment practice, or, as the case may be, an unlawful discrimination:
a. For an employer, because of the... sex ... of any individual, to refuse to hire or employ or to bar or to discharge... from employment such individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment;... provided ...
...

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