Newark Branch, N.A.A.C.P. v. Town of Harrison, N.J.
| Decision Date | 19 July 1991 |
| Docket Number | No. 90-5897,90-5897 |
| Citation | 940 F.2d 792 |
| Parties | 56 Fair Empl.Prac.Cas. 1688, 56 Fair Empl.Prac.Cas. 680, 57 Empl. Prac. Dec. P 40,908, 60 USLW 2096 NEWARK BRANCH, NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE; Jersey City Branch, National Association for the Advancement of Colored People; New Jersey State Conference, National Association for the Advancement of Colored People; National Association for the Advancement of Colored People, v. TOWN OF HARRISON, NEW JERSEY. NEWARK BRANCH, NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE; Paterson Branch, National Association for the Advancement of Colored People; Passaic Branch, National Association for the Advancement of Colored People; Jersey City Branch, National Association for the Advancement of Colored People; New Jersey State Conference, National Association for the Advancement of Colored People; National Association for the Advancement of Colored People, v. TOWNSHIP OF HARRISON, NEW JERSEY. |
| Court | U.S. Court of Appeals — Third Circuit |
Jonathan M. Hyman, Newark, N.J., David L. Rose (argued), Joshua N. Rose, Washington, D.C., Dennis C. Hayes, Gen. Counsel, Everald F. Thompson, Asst. Gen. Counsel, N.A.A.C.P./SCF, Baltimore, Md., for appellees.
Gregory J. Castano (argued), Kenneth D. McPherson, Jr., Robert J. Donaher, Waters, McPherson & McNeill, Secaucus, N.J., for appellant.
Gerald D. Miller (argued), Mildred S. Kwozko, Miller, Meyerson, Schwartz & Corbo, Jersey City, N.J., for amicus-appellant.
Before MANSMANN and HUTCHINSON, Circuit Judges, and O'NEILL, District Judge. *
In this Title VII disparate impact action, we are called upon to address various issues requiring interpretation of the Supreme Court's decision in Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 109 S.Ct. 2115, 104 L.Ed.2d 733 (1989), the most novel of which is the quantum and quality of evidence which a defendant must produce in order to meet its burden of production with respect to "business justification." Specifically, we must determine whether the district court erred in holding that the Town of Harrison, New Jersey violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e, et seq., when it enacted and enforced a municipal ordinance which provided that "no person shall be an eligible applicant for any position of employment in the classified civil service of the Town who is not a resident of the Town." The district court's holding rested upon the finding that Harrison's residency requirements were, in substantial part, responsible for a "marked disparity between the pool of qualified black applicants for municipal jobs in Harrison and the actual black representation among Harrison's employees." N.A.A.C.P., Newark Branch v. Town of Harrison N.J., 749 F.Supp. 1327, 1337 (D.N.J.1990).
Finding no error in the district court's application of the law or in its formulation of the remedy, we will affirm.
Because the factual underpinnings of this case are detailed in the opinion of the district court, we set forth only those facts necessary to establish a backdrop against which the legal challenges raised here may be evaluated.
Harrison is a small industrial community located in Hudson County, New Jersey. "Geographically, it is closely aligned with immediately adjacent Essex County to the west and could very well be considered an extension of the City of Newark which it abuts." N.A.A.C.P, 749 F.Supp. at 1331. For as long as the Town's witnesses could remember, the Town of Harrison has adhered to a policy of limiting hiring for its police, fire, and non-uniformed positions to town residents. With the exception of a non-resident black woman whom the Board of Education hired in a highly-skilled educational specialty, the Town of Harrison has never hired a non-resident or a black. Id. at 1329.
In 1947, Harrison brought its workforce within the terms of the New Jersey Civil Service Act, now codified at N.J.S.A. 11A:1-1, et seq., which charges the New Jersey Department of Personnel with establishing titles in the classified service, determining the need for competitive examinations, establishing and administering competitive examinations, establishing, consolidating, using and canceling lists of eligible applicants, and with certifying highest-ranking applicants on the eligibility lists to appropriate municipal officers. Id.
In 1978, the New Jersey Act concerning Residence Requirements for Municipal and County Employees modified the law to permit municipalities to "require [that] ... all officers and employees employed by the local unit ... be bona fide residents therein." N.J.S.A. 40A:9-1.3. The Act also provides that a municipality is authorized "to limit the eligibility of applicants for positions and employment in the classified service of such local unit to residents of that local unit." N.J.S.A. 40A:9-1.4. The reach of the Act is limited in that residency requirements are specifically made "subject to any order issued by any court, or by any State or Federal agency pursuant to law, with respect to a requirement to eliminate discrimination in employment based upon race, creed, color, national origin, ancestry, marital status or sex." N.J.S.A. 40A:9-1.10. 1
Pursuant to the Act, on October 6, 1981, Harrison adopted Ordinance 747 containing the following provisions: 2
Paragraph 1--"All officers and employees of the Town shall, as a condition of employment, be bona fide residents of the Town...."
Paragraph 2--"No person shall be an eligible applicant for any position of employment in the classified civil service of the Town who is not a resident of the Town." This requirement could be waived in the event of a Civil Service Commission determination that an insufficient number of qualified residents existed for the positions available.
Paragraph 3--"All non-residents appointed to positions and employments after the effective date of the Ordinance shall become bona fide residents of the Town within one year of their appointment...."
Paragraph 4--"Failure ... to maintain residency in the Town shall be cause for removal or discharge from service."
Paragraph 6--Where the position requires talents and skills "not likely to be found among the residents of the Town, such position or employment may be filled without regard to residency."
Paragraph 7--"Preference in promotion shall be given to officers and employees who are bona fide residence [sic] of the Town."
Paragraph 8--"This Ordinance shall not apply to members of the police department or fire department."
Harrison has limited municipal hiring in accordance with Ordinance 747 and with the state statutory provisions governing the hiring of police and fire fighters. Non-uniformed employees, laborer or clerk-typist positions, are most often filled by word-of-mouth or through informal application. These positions are non-competitive and do not involve an examination. Rather, appointees occupy a probationary status for a period of time, after which they are formally appointed pursuant to N.J.A.C. 4A:3-1.2(a).
Uniformed employee positions, on the other hand, are filled through an examination process administered by the State Department of Personnel. The Department, at Harrison's direction, classifies applicants according to their municipal residency. The 1988 application forms distributed to those wishing to take the state-wide police or fire fighter examinations contained a statement informing the applicant that he was eligible to apply to a city maintaining a resident eligible list "only if he were a resident of that Town both at the closing date for the Civil Service examination and on the date of actual appointment." N.A.A.C.P., 749 F.Supp. at 1331. The record indicates that no one other than a Harrison resident has ever been considered for a uniformed position. Id.
Given the residential hiring policy in effect in Harrison's municipal sector and the fact that the Town population is no more than .2% black, no uniformed or non-uniformed municipal position has ever been held by a black. Black representation among Harrison's private employers, in contrast, totaled 22.1% in 1988, the last year for which figures are available. Id.
The plaintiffs in this matter, the Newark branch of the membership organization known as the National Association for the Advancement of Colored Persons ("NAACP"), in furtherance of its interest in securing the civil and equal employment rights of minorities, filed suit against Harrison on July 31, 1989, alleging that the town's enactment of Ordinance 747 and its adherence to the hiring practices embodied in the ordinance violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e-2 (1982) because the municipal residency requirement resulted in a disparate impact on blacks. 3 The United States District Court for the District of New Jersey dismissed this complaint for failure to allege standing and denied the plaintiffs' motion to file an amended complaint.
On appeal, we upheld the dismissal of the complaint but concluded that the plaintiffs should have been permitted to amend the complaint in order to cure the standing deficiency. Newark Branch, NAACP v Town of Harrison, 907 F.2d 1408 (3d Cir.1990).
While the appeal in the original action was pending, the plaintiffs filed a second action asserting identical claims and seeking the same remedies. The two actions were consolidated and an amended complaint was filed. This complaint alleged that individual members of the NAACP had sought police, fire...
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