Passaic Daily News v. Blair
| Decision Date | 08 August 1973 |
| Parties | , 6 Fair Empl.Prac.Cas. (BNA) 224, 66 A.L.R.3d 1219, 6 Empl. Prac. Dec. P 8771 The PASSAIC DAILY NEWS, a corporation of New Jersey, Plaintiff-Appellant, Trenton Times Corporation, Intervenor-Appellant, v. James H. BLAIR, Director of the Division on Civil Rights of the State of New Jersey, and George F. Kugler, Jr., Attorney General of the State of New Jersey, Defendants-Respondents. |
| Court | New Jersey Supreme Court |
This action originated as a suit brought by Passaic Daily News in the Law Division of the Superior Court against the Director and the Attorney General. The newspaper sought in part a declaratory judgment that its classified advertising format, which included separate 'help wanted' columns designated 'male', 'female' and 'male-female', was in conformity with the Law Against Discrimination. About two weeks after the suit was filed the Director published in the New Jersey Register a notice of intention to adopt the Rule and at the same time the Attorney General moved to dismiss the complaint, or, in the alternative, to stay the action until the Director had taken action on the proposed Rule. The Passaic Daily News then moved for summary judgment, and the trial court reserved decision on both motions on March 30, 1972.
On April 3 and 4, 1972 the Director conducted public hearings on the proposed Rule. He subsequently adopted the Rule with certain modifications. Thereafter, the Law Division held that it was without jurisdiction over the subject matter of the complaint and it transferred the case to the Appellate Division 'as an appeal challenging the validity of the Employment Advertising Rule. . . .' See R. 2:2--3(a). The Appellate Division granted Trenton Times Corporation leave to intervene in the appeal and stayed enforcement of the Rule pending determination of the appeal. On motion of the Attorney General this Court certified the case before argument The Employment Advertising Rule interprets the Law Against Discrimination, particularly N.J.S.A. 10:5--12, subd. a., c., and e., to prohibit employers, employment agencies, unions and newspapers or other publications from publishing or causing to be published classified employment advertisements under a column heading which is segregated on the basis of race, creed, color, national origin, ancestry, age, sex or marital status. N.J.A.C. 13:11--1.3. In addition, the Rule declares that it is a violation of the act for an employment advertisement to be published by any of the above if it expresses in its text a direct or indirect preference based on any of the said prohibited criteria unless such preference is based on a 'bona fide occupational qualification'. N.J.A.C. 13:11--1.1, 13:11--1.4. This exception is described as including only those vocational qualifications which are 'reasonably necessary' to the normal operation of the particular employer, and is to be interpreted so that individuals will be considered for employment on the basis of their individual capacities and not on the basis of any characteristics generally attributable to a particular group of people. N.J.A.C. 13:11--1.5. The Rule provides that the exception for a sex-classification 'may be warranted where it is necessary for authenticity or genuineness, such as for an actor or actress, or where the job in question necessarily involves intimate personal contact with persons of the opposite sex'. Ibid.
in the Appellate Division. 62 N.J. 187, 299 A.2d 722 (1972). The New Jersey Press Association was granted leave to submit a brief and argue the cause as Amicus curiae.
The Rule also requires the Division to respond to inquiries as to whether a particular job qualifies for a bona fide occupational qualification in respect of one of the ordinarily illegal preference criteria. The Division's responses are to be made 'promptly, and whenever possible no later than two hours after the inquiry is received'. N.J.A.C. 13.11--1.6. If a newspaper reasonably relies in good faith on the representation of its advertiser that the Division has The Rule contains guidelines for composition of 'help wanted' advertisements. N.J.A.C. 13:11--1.4. These provide, Inter alia, that except where sex is a bona fide occupational qualification ('bfoq', hereafter) the job title used in an advertisement must be neutral in respect of sex. If use of a neutral title is not practicable the advertisement must either include the job title which is the sex counterpart of the non-neutral title or the description 'M/F'. Illustrations are set forth in the text of the rule, E.g., 'Salesman' is a prohibited term; permissible substitutes are 'Salesperson', or 'Salesman/woman' or 'Salesman M/W'. Ibid.
determined that the job has a bona fide occupational qualification, the newspaper will not be in violation of the Rule for printing the advertisement. Opinions given by the Division concerning bona fide occupational qualifications 'shall be binding for the purpose of these provisions', unless the person seeking the opinion has not fully and accurately disclosed the relevant facts. Ibid.
The appellant newspapers make these arguments against the validity of the Rule: (a) it is beyond the Division's rule-making authority insofar as it applies to newspapers since the statutory provision prohibiting discriminatory advertisements, N.J.S.A. 10:5--12, subd. c., mentions action only by 'any employer or employment agency' and not newspapers; (b) the practice of sex-segregated column headings is not in fact discriminatory; (c) the Rule imposes an unreasonable burden on newspapers to determine whether a particular advertisement containing a gender requirement is justified on grounds of bfoq.
The Amicus, while supporting appellants on the grounds mentioned, assails the regulation also as unconstitutional because impairing freedom of the press and in several other respects. In view of the very recent decision of the United States Supreme Court in Pittsburgh Press Co. v. The Pittsburgh Commission on Human Relations, --- U.S. --- I.
93 S.Ct. 2553, 37 L.Ed.2d 669 (1973) it will be convenient to deal initially with the First Amendment issue.
A comparison of the facts in Pittsburgh Press and those before us here reveals such substantial similarity as to render the decision in that case conclusive here on the issue of freedom of the press. Pittsburgh's anti-discrimination ordinance provided in Section 8(e) that it was unlawful for 'any employer, employment agency or labor organization to publish or circulate, or to cause to be published or circulated' any advertisement indicating any discrimination because of race, color, religion, ancestry, national origin or place of birth, or sex. (Compare N.J.S.A. 10:5--12, subd. c.) Section 8(j) of the ordinance made it also unlawful for 'any person, whether or not an employer, employment agency or labor organization, to aid, incite, compel, coerce or participate' in the doing of any unlawful discriminatory act. (Compare N.J.S.A. 10:5--12, subd. e.) The Pittsburgh Commission on Human Relations was required, under another section of the ordinance, to certify upon request of any person that a particular occupation or position was exempt from the ordinance provisions on grounds similar to those supporting a bfoq exemption.
On a complaint brought by the National Organization for Women, the Pittsburgh Commission on Human Relations found that the Pittsburgh Press 'aided' employers and others in discriminating against women through a classified advertising format consisting of three separate columns headed, 'Jobs-Male Interest', 'Jobs-Female Interest', and 'Male-Female Help', although a 'disclaimer' notice was also printed. The NOW complaint did not allege any specific instance of discrimination, and indeed the record showed that the newspaper had--after conferring with the Commission--voluntarily attempted to eliminate the terms 'male' and 'female' in the body of employment The United States Supreme Court granted certiorari, and, in a 5--4 decision upheld the action of the Pennsylvania authorities as not violative of freedom of the press. The argument presented there and here is that a governmental regulation interfering with 'editorial judgment' as to the make-up of advertising pages operates to cut into the freedom to publish as the newspaper sees fit and thereby abridges freedom of the press. The court rejected the contention, describing the advertisements as ...
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