Lige v. Town of Montclair

OUTLINE OE DISSENTING OPINION BY PASH MAN, J.

The Issue P. 27

I The Remedial Power of the Division on Civil Rights 29

*27 II The Propriety of Remedial Racial Quotas 34

' A. The Remedial Racial Quota as an Unlimited Remedy 35

B. The Remedial Racial Quotas as Fostering an “Unqualified” Work Force 41

O. The Remedial Quota as Retroactive Relief ' 46

III The Constitutionality of Remedial Racial Quotas 52

Conclusion 62

Pashman, J.

(dissenting).

The Issue

Our decision today concerns the validity of an important tool in the arsenal of legal remedies for racial discrimination. We must decide whether the New Jersey Division on Civil Rights may utilize employment quotas or guidelines based upon racial criteria to undo the effects of past unlawful hiring practices when there has been no showing that these effects resulted from intentional, purposeful acts of racial prejudice.

At stake is a relatively narrow legal question concerning the legitimacy of quotas based on racial criteria as a remedial measure of finite duration and, scope, designed specifically to redress an administratively or judicially adjudicated finding of unlawful discrimination. The majority finds that such measures are beyond the scope of the authority delegated to the State Division on Civil Rights and violate the New Jersey Constitution, Art. 1, ¶ 5, and the New Jersey Law Against Discrimination, N. J. S. A. 10:5-1 et seq. I unhesitatingly reach a contrary conclusion and therefore must dissent.

The subject of racial quotas, regardless of their remedial intent, evokes a visceral response whose emotional, qualities may obscure . thoughtful consideration of their beneficent effects. Yet this case does not concern the use of racial quotas as a means of redressing historical wrongs against *28 black citizens. Rather, we are called upon to consider a remedy for specific instances of past discrimination. The hearings conducted by the Division on. Civil Rights produced ample evidence supporting the Division’s 'findings of racial discrimination in the hiring and .promotion practices of the Montclair Department of Public Safety; 1 the factual basis demonstrating a need for an effective remedy is cle'a’r. Moreover, this case does not provide an appropriate forum for evaluating the relative merits of different remedial devices, or general policy objectives such as equal employment opportunity and a qualified work force. Nevertheless, the narrow question posed by this case is of fundamental importance — the authority of the State Division on Civil Rights to utilize certain remedial devices in enforcing the constitutional proscription against invidious discrimination. N. J. Const. (1947), Art. 1, ¶ 5.

This question will require a three-part inquiry. First, I examine the source and extent of the power vested in the Division on Civil Rights to enforce the laws against discrimination. I will then consider some of the common misconceptions about remedial quotas and discuss the specific *29 objections which the majority has raised to this form of relief. Finally, the constitutionality of these devices under the State and Federal constitutions will be addressed.

I

The Remedial Power of the Division on Civil Rights

As early as 1884, with the passage of the First Civil Rights Bill, L. 1884, c. 219, New Jersey began to chart a course of legislative initiatives outlawing various forms of discrimination and guarding against infringement of civil rights. 2 Among the legislative enactments designed to vindicate and safeguard these newly recognized rights was a 1938 act creating the New Jersey Goodwill Commission whose educational and informational functions were intended to “foster racial and religious understanding.” L. 1938, J. R. II. 3

Although striking at numerous specific evils, these early efforts did not provide the comprehensive scheme needed to cope with the widespread incidence of invidious discrimination. Instead of constituting a uniform body of law, they represented a patchwork of remedial legislation confronting *30 only isolated instances of discrimination. Bee note 2 supra. Moreover, they lacked the administrative coordination and the remedial power to become effective instruments for enforcing State policy. As a result, dissatisfaction with the effectiveness of this legislation finally prompted the Legislature to adopt the omnibus Law Against Discrimination, N. J. S. A. 10:5—1 et seq., L. 1945, c. 169. 8ee generally, Blumrosen, “Antidiscrimination Laws in Action in Mew Jersey: A Law-Sociology Study,” 19 Rutgers L. Rev. 189 (1965). 4

This statutory scheme not only recognized that discriminatory practices impinge upon the rights of individuals who are personally subjected to such treatment, but also acknowledged the debilitating effects which such practices have on the welfare of society at large. As N. J. S. A. 10:5-3 expressly provides:

The Legislature finds and declares that practices of discrimination against any of its inhabitants, because of race, creed, color, national origin, ancestry, age, sex, marital status or because of their liability for service in the Armed Forces of the United States, are a matter of concern to the government of the State, and that such discrimination threatens not only the rights and proper privileges of the inhabitants of the State but menaces the institutions and foundation of a free democratic State.

[N. J. S. A. 10:5-3; emphasis supplied.]

In order to protect individuals discriminated against and to implement its general purpose and specific provisions, the Law Against Discrimination also provided for the cre *31 ation of a Division on Civil Rights. This agency, which is located in the Department of Law and Public Safety and is under the administrative leadership of the Attorney General, has been accorded broad powers to effectuate the statutory intent. N. J. S. A. 10:5-6 outlines this mandate as follows:

. . . [T]o prevent and eliminate discrimination in the manner prohibited by this act against persons because of race, creed, color, national origin, ancestry, age, marital status or sex ... by employers, labor organizations, employment agencies or other persons and to take other actions against discrimination because of race, creed, color, national origin, ancestry or age ... as herein provided; and the division created hereunder is given general jurisdiction and authority for such purposes.

In addition to having the power to accept or initiate complaints for violations of the Law Against Discrimination, N. J. S. A. 10:5-13, the Division has been empowered to undertake a variety of actions whose ultimate objective is the elimination of invidious prejudicial practices. Thus, it may promulgate rules, N. J. S. A. 10:5 — 8, investigate complaints, attempt conciliation between concerned parties, N. J. S. A. 10:5-14, hold hearings concerning the operation and effect of allegedly discriminatory practices, N. J. S. A. 10: 5-16, and even enforce provisions of the Law Against Discrimination in a summary proceeding before the Superior Court, N. J. S. A. 10:5-14.1. If the Division, after these various procedural steps, determines that there has been a violation of the Law Against Discrimination, it is statutorily authorized under N. J. S. A. 10:5-17 to:

. , . issue and cause to be served on such respondent an order requiring such respondent to cease and desist from such unlawful employment practice or unlawful discrimination and to take such affirmative action, including, hut not limited to, hiring, reinstatement or upgrading of employees, with or without back pay, or restoration to membership, in any respondent labor organization, or extending full and equal accommodations, advantages, facilities, and privileges to all persons, as, in the judgment of the director, will effectuate the *32 purpose of this act, and including a requirement for report of the manner of compliance ....

[N. J. S. A. 10:5-17; emphasis supplied.]

Courts have construed this aspect of the Law Against Discrimination liberally in order to effectuate its remedial purpose. Fraser v. Robin Dee Day Camp, 44 N. J. 480 (1965); Levitt & Sons, Inc. v. Div. Against Discrimination, 31 N. J. 514, 524 (1960), appeal dismissed, 363 U. S. 418 , 80 S. Ct. 1257 , 4 L. Ed. 2d 1515 (1960). As we stated in Passaic Daily News v. Blair, 63 N. J. 474 (1973) :

This court has heretofore adopted a broadly sympathetic construction of the Law' Against Discrimination and has interpreted the provisions thereof pertaining to the remedial powers of the Division on Civil Rights and the Director thereof with that high degree of liberality which comports with the preeminent social significance of its purposes and objects.

[63 N. J. at 484; emphasis supplied.]

See also Jones v. Haridor Realty Corp., 37 N. J. 384, 392-393 (1962); Gray v. Serruto Builders, Inc., 110 N. J. Super. 297, 306-307 (Ch. Div. 1970); Polk v. Cherry Hill Apartments, Inc., 62 N. J. 55, 58 (1972); N. J. Builders, Owners and Managers Ass’n v. Blair, 60 N. J. 330, 336-338 (1972).

Initially, we must determine whether this broad grant of power was intended to include remedial quotas based upon racial criteria. Although such authority is not explicitly granted by the statutory provisions cited above and has not been considered by a court or the Division itself, 5 I find *33 ample legal basis for inferring that it exists. Unlike those sections of the Law Against Discrimination which outline the procedure for considering allegations of discriminatory-conduct, N. J. S. A. 10:5-17, the basic authorization of remedial powers is quite general in scope. In fact, that section expressly provides that the remedies which it suggests are not intended to be exclusive. In Jackson v. Concord Co., 54 N. J. 113 (1969), for example, this Court upheld an award of compensatory damages ordered by the Division on Civil Rights for a person who had been subject to housing discrimination. The Court found this form of relief, though not mentioned in the statute, to be implicit in the broad ambit of N. J. S. A. 10:5-17:

The permissible affirmative action is not fully defined. The section only says “including, but not limited to, hiring, reinstatement or upgrading of employees, with or without back pay, or restoration to membership, in any respondent labor organization” — obviously referring to discrimination in employment—“or extending full and equal accommodations, advantages, facilities and privileges to all persons” — undoubtedly referring, in great generality, to affirmative action in eases of unlawful discrimination in housing and places of public accommodation. We have earlier held, in analogous interpretation situations under this act, that terms like “include” are words of enlargement and not of limitation and that examples specified thereafter are merely illustrative. * * * This is especially so here where the word “including” is followed by the phrase “but not limited to.” [54 N. J. at 126-127.]

Consequently, as the majority is willing to concede, ante at 17, New Jersey courts have demonstrated a willingness to sanction a variety of different remedies imposed by the Division on Civil Rights, despite the absence of specific statutory authorization. Such remedial measures have included the required submission of annual reports by owners of multiple unit dwellings on the number of minority tenants in their apartments, N. J. Builders, Owners and Mana *34 gers Ass’n v. Blair, supra; compensatory damages for the increased cost of finding alternative, nonsegregated housing, Jackson v. Concord Co., supra; compensatory damages for pain and suffering caused by discrimination, Zahorian v. Russell Fitt Real Estate Agency, 62 N. J. 399 (1973); mandatory submission of lists of available apartments by certain landlords every 30 days for two years, Polk v. Cherry Hill Apartments, Inc., supra; and prohibition of classified advertising which segregates on the basis of sex, Passaic Daily News v. Blair, supra. An innovative approach by the Division on Civil Rights, coupled with the liberal interpretation of the Division’s powers by the courts, has transformed N. J. S. A. 10:5-17 from a general mandate to pursue “affirmative action” into a viable and effective means of assuring equal protection under the law.

•This pattern of statutory interpretation indicates that judicially developed standards for “affirmative action” clearly encompass the type of relief ordered by the Division on Civil Rights in the instant case.

II

The Propriety of Bemedial Badal Quotas

Though the majority apparently acknowledges the breadth of the remedial provisions of the Law Against Discrimination, ante at 16-18, it nonetheless rules out administratively or judicially imposed racial quotas as a permissible means of granting relief for past discrimination. The Court’s criticisms of employment quotas are neither novel nor unusual. Indeed, its adamant opposition to this remedy is echoed by some critics who are disillusioned with current efforts by courts and administrative agencies to enforce the civil rights laws. See, e. g., N. Glazer, Affirmative Discrimination (1975).

The majority begins from the premise that race can never be a criterion for preferential treatment because it is an “irrelevant” factor which bears no relation to merit or quali *35 fieations. It argues that racial guidelines exalt group, rather than individual interests, and divide society on the basis of race and ethnic background, thereby undoing the beneficial effects of the anti-discrimination laws. More importantly, the majority interprets the State Constitution to bar all such preferential plans, whether or not aimed at instances of past injustice. This Court is virtually alone in holding that an employment quota is never permissible as a remedial device aimed at wiping out the effects of discrimination. I believe that the majority has underestimated the necessity for such measures in many cases, and exaggerated their negative effects.

A. The Remedial Racial Quota as an Unlimited Remedy

Pirst, the majority’s characterization of remedial quotas creates the spectre of a remedial bludgeon. Thus, the majority envisions that the remedial obligations imposed in this case will continue in perpetuity and will invite subsequent imposition of quotas to assist other groups. Indeed, the majority seriously suggests that a caste system will be the ultimate result of the remedial quotas which we consider today, see ante at 24. This characterization not only miscontrues the underlying purpose of preferential quotas, but overlooks their flexibility as a remedial device.

Quotas which are limited in scope and duration and which are properly designed to a particular area and a limited end will not encroach upon principles of fairness and reasonableness. One commentator has used the term “tailored decree” to characterize the need for quotas which are limited to eradicating the effects of past discrimination:

The tailored decree avoids a conflict with the stricture against preferential treatment based on race if it observes tioo limitations. The first is that, even though the class of beneficiaries may be predominantly, if not exclusively, blacks, the benefits are not being conferred because of their race but because they are victims of discrimination. Race is used to identify beneficiaries, but it is being used symptomatically, along with some other criteria, to identify the *36 victims .... The second limitation is that the benefit conferred is limited. It will result only in the applicant being treated equally. So long as the credit does no more than neutralize the discriminatory effect of the criterion, the claim can be made that, notwithstanding the outward appearance of unequal treatment (the additional credit), the beneficiaries are merely treated equally and thus the remedy is consistent with the theory of a fair employment law. [Fiss, “A Theory of Fair Employment Laws,” 38 U. Chi. L. Rev. 235 , 307-308 (1971) ; emphasis supplied.]

Accordingly, the federal courts have consistently approved quotas which were designed to remedy specific instances of past discrimination. Nine of the ten federal circuits have endorsed preferential hiring or promotion plans based upon decrees which were carefully molded to fit the exigencies of each situation. See Patterson v. American Tobacco Co., 535 F. 2d 257, 273-274 (4 Cir. 1976) and cases cited. 7 Eor example, in N. A. A. C. P. v. Allen, 493 F. 2d 614 (5 Cir. 1974), the Fifth Circuit imposed a quota, on future hiring by the Alabama State Police, stressing both the limited purpose served by the quota and its limited duration:

In conclusion we would note that this extraordinary remedy is not without its limitations. The use of quota relief in employment discrimination cases is bottomed on the chancellor’s duty to eradicate the continuing effects of past unlawful practices. By mandating the hiring of those who have been the object of discrimination, quota relief promptly operates to change the outward and visible signs of yesterday’s racial distinctions and thus, to provide an impetus to *37 the process of dismantling the barriers, psychological or otherwise, erected by past practices. It is a temporary remedy that seeks to spend itself as promptly as it can by creating a climate in which objective, neutral employment criteria can successfully operate to select public employees solely on the basis of job-related merit.

[ 493 F. 2d at 621 ; emphasis supplied.]

On the other hand, courts have been reluctant to sustain quotas where they have been used for purposes other than to overcome the effects of past discrimination. See, e. g., Smith v. East Cleveland, 363 F. Supp. 1131 (N. D. Ohio E. D. 1973), where the court declined to impose a quota on the grounds that there had been “positive efforts to erase the effects of past discrimination.” 363 F. Supp. at 1152 . 8

Because remedial quotas are primarily intended to mollify the vestiges of specific instances of past discrimination, they will vary in content depending on the circumstances of each case. Among the remedial plans which have received judicial approval are orders which require an employer to hire a fixed number of minority employees, Carter v. Gallagher, supra (municipal fire department ordered to hire minority persons pursuant to a set ratio until 20 qualified minority persons had been employed), United States v. Central Motor Lines, Inc., 325 F. Supp. 478 (W. D. N. C. 1970) (preliminary injunction granted to require the employment of six blacks as over-the-road drivers). Alternatively, courts have ordered employers to hire minority em *38 ployees until they comprise a fixed percentage of the relevant work force, United States v. Local 212, IBEW, 472 F. 2d 634 (6 Cir. 1973) (labor union ordered to acquire an 11% black membership), N. A. A. C. P. v. Allen, supra (Alabama State Police ordered to hire blacks on a one-to-one basis until 25% of the supporting personnel were black), Buckner v. Goodyear Tire & Rubber Co., 339 F. Supp. 1108 (N. D. Ala. M. D. 1972) (set percentages established for admission of minority persons to pre-apprentice and apprentice training programs). Finally, courts have utilized orders which have required hiring of minority employees according to a fixed ratio, Vogler v. McCarty, 451 F. 2d 1236 (5 Cir. 1971) (labor union ordered to make referrals to whites and blacks on a one-to-one ratio), or decrees which require employers to hire minority employees on some other limited basis, Castro v. Beecher, 459 F. 2d 725 (1 Cir. 1972) (Boston police department ordered to make subsequent appointments to department from a priority pool of eligible minority applicants until priority pool had been exhausted), Western Addition Community Org. v. Alioto, 369 F. Supp. 77 (N. D. Cal. 1973), aff’d 514 F. 2d 542 (9 Cir. 1975) (San Francisco fire department required to appoint whites and blacks according to a one-to-one ratio until a designated list of qualified minority applicants had been exhausted) .

The majority’s emphasis on instances in which the federal courts have either limited or rejected quotas ignores the realization by those courts that this remedy is often necessary and proper in other cases. In fact, it relies on decisions which are wholly at odds with its blanket rejection of quotas. For instance, in Bridgeport Guardians, Inc. v. Members of Bridgeport Civil Service Commission, 482 F. 2d 1333 (2 Cir. 1973), cert. den. 421 U. S. 991 , 95 S. Ct. 1997 , 44 L. Ed. 2d 481 (1975), the Second Circuit expressly approved hiring quotas favoring applicants on the basis of race even though there was no showing of intentional discrimination. The opinion criticized the use of an “archaic test” *39 which was not job validated or job related, and the absence of any significant recruiting efforts aimed at minority persons. Id. at 1340. Although the court did strike down a promotion quota, it noted the lower court’s failure to make a finding that the promotion examination was not job related. Id. at 1341. 9

Likewise, in Patterson v. American Tobacco Co., supra, the Fourth Circuit noted the unanimity of opinion among other circuits, authorizing preferential relief as a remedy for unlawful discrimination, and itself upheld the propriety of such relief “when there is a compelling need for it.” Id. at 274. It approved, in principle, the use of a promotion quota for supervisors, although it found that the employer’s rate of appointments to supervisory positions was high enough to remove any compelling need for the quota in that particular case. Id. at 274-275. 10

*40 The quotas adopted by the Division on Civil Rights — as modified below •— are well within the standards articulated by the federal courts. First, the Division imposed numerical goals only where gross under-representation of minorities on the work force would have ensured that the effects of past hiring practices would have continued indefinitely without drastic action. Thus, it refused to require hiring goals for the police department, even though black representation in the force (14.7%) is substantially less than the proportion of blacks in the community (27.2%). Similarly, it only revised the testing and selection procedures for hiring in the fire department, because one of the three black employees was in a promotional position. Second, the Division limited the quota relief to a stated period of time, and set reasonably attainable numerical goals which can be met by Montclair without excessive disruption. Both features are consistent with the model of a “tailored decree.”

In one respect, however, the Director’s order is unsatisfactory and should be revised. Paragraph 6 orders the Montclair Fire Department to hire at least 15 qualified minority applicants on a one-to-one basis with white applicants. They are to be taken initially from the pool of applicants who took the 1971 examination and are deemed qualified under the newly adopted nondiscriminatory procedures. After the pool is exhausted, hiring is to continue at the prescribed rate until the requisite number of applicants is appointed. *41 For reasons I discuss below, see Part III, I would limit the quota relief to the class of persons who were directly subjected to the discriminatory hiring procedures, and release Montclair from the one-to-one requirement after all members of the pool have been hired or have declined appointments.

Finally, contrary to the majority’s suggestion, the imposition of such relief will not entail imposition of similar quotas to protect the interests of other racial or ethnic groups. Judicial validation of quotas in certain cases does not mean that all racial or ethnic groups are entitled to a fixed percentage or established representation on each governmental agency or with each private concern subject to the Law Against Discrimination. Such relief can only be imposed if there has been an adjudication of past discrimination whose effects continue to be felt. Even though there may have been minority applicants in the past, these complainants must also prove that the employment practices discriminated against them in purpose or effect. Minority groups which may have just moved into the area will be unable to prove that proportional under-representation is related to past discrimination. Accordingly, I would find the quotas imposed by the Division on Civil Rights, being limited in scope and operation, to be valid exercises of the Division’s remedial powers.

B. The Remedial Racial Quotas as Fostering an "Unqualified” Work Force

Next, the majority argues that remedial quotas will promote and even require the hiring of unqualified municipal employees. This argument appears to be based on the conclusion that failure to pass an examination — regardless of which examination is administered, what skills it tests, and whether it is professionally validated — indicates a lack of education which in turn shows that one is unsuited for the job. As the majority states:

*42 The Director’s orders granted priorities to black applicants and employees vis-a-vis others (assuming the minimum standard is met) without regard to the particular training, experience, and education of each applicant .... Equality of opportunity in employment will become more realistic when co-equality of opportunity in education exists. Lowering the standards for the Montclair Police and Fire Departments is not the solution.

[Ante at 21]

Although this argument may appear plausible at first, careful examination rebuts any notion that these guidelines require a harmful “lowering of standards” by Montclair.

The order issued by the Division on Civil Rights fully recognizes the critical need for qualified applicants and therefore limits the pool of eligibles to minority oan didates who have demonstrated that they were so qualified:

6. Future appointments to the Montclair Fire Department shall be conducted on the following basis: One (1) qualified minority applicant shall be selected for every one (1) qualified white applicant until the total number of minority officers on the Fire Department equals at least fifteen (15) persons ....

# * * * * * sh *

11. The black applicants who are deemed qualified by this re-evaluation shall be so notified in writing. Future promotions in the Montclair Police Department shall be made on the following basis.

One qualified black applicant shall be promoted for every one qualified white applicant until 50% of those minority applicants deemed qualified by the re-evaluation have, been promoted.

[Emphasis supplied]

Thus, to the extent that the majorit}’ is concerned with a “lowering of standards” in the fire and police departments of Montclair to accommodate less-than-qualified or incompetent candidates, it should be satisfied by the requirement that the eligible applicants pass the revised examination adopted by the Montclair Department of Public Safety.

More troubling is the balance that the majority strikes between the concept of merit, as measured by standardized, written tests, and the goal of fair employment for minority group members. As illustrated by the case at bar, the real question to be considered is not whether public agencies *43 should insist upon obtaining qualified employees. The necessity for this is obvious. Rather, the important questions which must be addressed are (1) what are the relevant job qualifications and how should they be measured and (2) can a supposedly “more qualified” applicant be by-passed to hire an applicant for purposes of redressing the effects of past discrimination.

As to the first inquiry, the majority fails to address the question squarely, but it apparently is willing to accept criteria which place a premium on educational background. The record contains no evidence concerning relevant job qualifications because the respondents chose not to rebut the appellants’ prima facie casa; moreover, the question has now become moot with the development of new employment procedures which have won the approval of the Division on Civil Rights. Nonetheless, the same issue will surely arise in subsequent cases, and I must differ with the majority’s position that “coequality of education” is the only solution to the problem at hand. Indeed, the presumption that certain written tests serve a discriminatory function by acting as ‘Trailt-in headwinds” for minority candidates is based on the likelihood that these applicants have been denied the schooling and cultural opportunities available to whites. See, Griggs v. Duke Power Co., supra, 401 U. S. at 431, 91 S. Ct. at 853, 28 L. Pd. 2d at 164. To sanction over-demanding requirements which are not proven indicators of job performance is tantamount to permanently foreclosing employment prospects for a generation of minority workers. 11 *44 Moreover, such a decision is fundamentally unfair. As Justice Powell remarked in McDonnell Douglas Corp. v. Green:

Griggs was rightly concerned that childhood deficiencies in the education and background of minority citizens, resulting from forces beyond their control, not be allowed to work a cumulative and invidious burden on such citizens for the remainder of their lives.

[411 U. S. at 806, 93 S. Ct. at 1826 36 L. Ed. 2d at 680]

See generally, Cooper and Sobol, “Seniority and Testing Under Pair Employment Laws: A General Approach to Objective Criteria of Hiring and Promotion,” 82 Harv. L. Rev. 1598 , 1640 (1969).

The majority also fails to recognize the problem inherent in the concept of “merit,” as it is used in this context. Hiring and promotion procedures are designed to identify candidates who are most likely to perform well in a given position. These procedures should focus on achievements or innate talents only to the extent that those characteristics correspond to the demands of the employer. Though the merit system has served a salutary purpose in public employment by providing an objective measure for choice, it may have the undesirable effect of weeding out members of a particular racial or minority group on the basis of factors which are unrelated to job performance. 12 We should admit that *45 these measurements of merit serve an allocative, rather than an evaluative, function, and recognize the value judgment implicit in preferring educational background. See Karst and Horowitz, “Affirmative Action and Equal Protection,” 60 Va. L. Rev. 950 (1974).

Moreover, merit is necessarily defined by reference to community needs. I see nothing objectionable in a public employer making a concerted effort to recruit minority candidates in order to improve the efficiency of an agency’s work in specific areas. 13 See Bridgeport Guardians, Inc. v. Members of Bridgeport Civil Service Commission, supra, 482 F. 2d at 1340-1341 (2 Cir. 1973). In addition, other screening devices unrelated to educational background may be more valuable than written tests in assessing qualifications. Por instance, in view of the strenuous, and often dangerous, nature of the work, a competitive physical examination may provide a better method for eliminating ap *46 plicants for a fire department. Vulcan Society of N. Y. C. Fire Department, Inc. v. Civil Service Commission, 360 F. Supp. 1265, 1276-1277 (S. D. N. Y. 1973), aif’d and remanded on other grounds, 490 F. 2d 387 (2 Cir. 1973).

Therefore, I would adhere to the standard adopted by the Hearing Examiner in this case and require that, when written tests or job criteria are shown to have a statistically disproportionate impact on a given racial or minority group, the employer demonstrate that the criteria measure skills which are necessary for satisfactory job performance'. Ante at 28 n. 1 (Pashman, J., dissenting). See Erie Human Relations Commission v. Tullio, supra, 493 F. 2d at 373 (3d Cir. 1974); Educational Equality League v. Tate, 472 F. 2d 612, 618 (3d Cir. 1973); Parham v. Southwestern Bell Tel., 433 F. 2d 421 (8th Cir. 1970). To this extent, I would qualify the suggestion in Jackson v. Concord Co., supra, 54 N. J. at 119, that the complainant be given the burden of persuasion by a preponderance of the evidence. Where the employer’s procedures include unvalidated testing devices and subjective evaluations, without adequate standards or safeguards against discrimination, it is enough that the complainant show discriminatory consequences. The employer is better equipped to identify the core of relevant considerations which add up to “business necessity.” Moreover, in contrast to the individual complainant, the employer can draw upon a readily accessible fund of information and array of resources to establish the nondiscriminatory character of his procedures.

C. The Remedial Quota as Retroactive Relief

The majority argues that the relief ordered by the Director serves an injustice to the white applicant who is. passed over for hiring or promotion in favor of a putatively less qualified black candidate. In its view, quotas distort the basic policy of the Law Against Discrimination by instituting a temporary regime which is race-aware rather *47 than color blind and by discarding “the fundamental precept in a democratic society that merit, not skin color, should determine an individual’s place in society.” Ante at 22. It would avoid this pitfall by awarding retroactive relief solely to the individual who files the complaint, and trusting in prospective nondiscriminatory selection methods to eradicate the effects of past discrimination. While I do not underestimate the impact of quotas on the prospects of white candidates, I must nonetheless uphold their validity as the only effective means in many situations of making any significant inroads on racial discrimination.

Although our previous decisions have only considered situations in which prospective relief was sought, in no instance did we rule out more far-reaching retroactive remedies in appropriate cases. On the contrary, our willingness in the past to imply a variety of remedies without express statutory support has been animated by a belief that the State’s commitment to equal rights would be ill-served by grudging, half-way applications of the Law Against Discrimination. Ante at 32 (Pashman, J., dissenting). To now limit the Director’s remedial powers to the measures cited by the majority undermines constitutional and statutory guarantees against unequal treatment by permitting the racial imbalance in the work force caused by this discrimination to persist indefinitely.

It may be true that the natural processes of replacement as vacancies occur will “ultimately” alter the character of the departments, but such a result is unlikely to occur soon. As of 1972, the Montclair Eire Department had a force of 89 firemen, of whom three were black (3.4%). Of this number, 41 firemen had been appointed prior to the institution of testing in 1952; only three new employees, including one black, had been hired since 1970. Unless pro-; portionally more blacks are hired through the selection process in the future, it is plain that the department will retain its lopsided racial character. Continued reliance upon educational background as the sole hiring criterion enhances *48 that probability. Even under the suggested quota, the number of blacks on the force would have reached only 15, or roughly 17%, in seven years. 14

Of course, a concern for expeditious change assumes that a finding of racial discrimination requires vigorous efforts to eradicate that condition. Quotas often prove to be the only practicable means of vindicating the rights of victims of discrimination when there is an egregious pattern of past discrimination, see U. S. v. International Union of Elevator Constructors, Local Union No. 5, 538 F. 2d 1012 (3d Cir. 1976), or noncompliance with less drastic, court-ordered remedies, see Western Addition Community Org. v. Alioto, 369 F. Supp. 77 (N. D. Cal. 1973). In these instances, the ready availability of effective remedies discourages a recurrence of intentional discrimination. Moreover, their use demonstrates to all concerned that the law’s proscriptions can have a sharp bite when flagrantly violated. Although this case presents no such examples of official recalcitrance or purposeful wrongdoing, I fear that the majority’s wholesale rejection of the quota as a remedial device will hamper the Division on Civil Rights in disputes with less cooperative employers. Given the novelty of this question in our own courts and the recommendation of the Division on Civil Rights, it seems unwise for the majority to rule out the use of numerical standards in those situations.

Quotas are also appropriate when the employer is a public agency which has an affirmative duty to make special efforts to eradicate the vestiges of past discrimination, whether or not intentional. 15 See, e. g., N.A.A.C.P. v. Allen, supra, *49 Pennsylvania v. O’Neill, 473 F. 2d 1029 (3 Cir. 1972) (en banc); Carter v. Gallagher, supra. We should expect the government to make more than token efforts in providing equal employment opportunities to minority citizens, particularly in light of the beneficial role that they can serve in promoting the welfare of the community. Bridgeport Guardians, Inc. v. Members of Bridgeport Civil Service Com’n, supra, 482 F. 2d at 1341 .

The majority insists that class-wide relief is inappropriate in this case. However, the dual policies of N. J. S. A. 10: 5-3 encompass both a general societal interest in upholding “the institutions and foundation of a free democratic State” against the corrosive effects of discrimination, as well as a more particularized interest in safeguarding individual rights and privileges. The relief in this case is vital to eradicate the cancer of discrimination. The majority, however, seizes upon individual grievances as the primary focus of the act, and construes N. J. S. A. 10:5 — 17 to restrict compensatory relief to minority applicants against whom discrimination has been practiced by the employer. It states:

Curing an illegally imposed racial discrimination against an individual is understandable and justifiable — but race is not an appropriate standard to apply on a class basis.

[ante at 23]

I disagree for two reasons.

Eirst, this reading of the act contradicts its language. Even though N. J. S. A. 10:5-12 does define an unlawful employment practice or an unlawful discrimination in terms of an employer’s treatment of an individual, N. J. S. A. 10:5-17 refers to affirmative action affecting “employees” and “all persons.” Neither the specific wording nor the general import of the section warrants a distinction between *50 relief to cure a wrong to an individual and relief to remedy a wrong to a class. On the contrary, the language indicates that the individual complaint, if sustained, triggers the Director’s power to take affirmative action which will “effectuate the purpose of this act,” a formulation which goes beyond compensating the complainant for his own loss. See N. J. S. A. 10:5-3. Many of the measures expressly contained in the statute are clearly directed at the class of persons represented by the complainant, as this Court has recognized in upholding class-wide remedies. Indeed, the majority concedes the point by allowing some forms of affirmative action as a way of reducing the effects of past discrimination against a particular group of persons. Ante at 18.

Second, though I would limit hirings to qualified applicants in this instance, the only effective remedy for past discrimination may be to make relief available to the entire minority group. In some cases, the applicants who are turned away or who are unsuccessful on the examination may not be identifiable after the fact. Others may be deterred from even applying because they are aware of an employer’s discriminatory practices. See United States v. Sheet Metal Workers, Local 36, 416 F. 2d 123 , 132 (8 Cir. 1969); Carter v. Gallagher, supra at 331; Morrow v. Crisler, 491 F. 2d 1053, 1056 (5 Cir. 1974).

As I interpret the majority’s decision, none of the black applicants who failed the 1971 test —• including Mr. Lige — will be given preferential treatment in the future. Although free to take a nondiscriminatory examination and submit to the revised interviewing procedure (if they pass the test), they will not be given any advantages vis-a-vis future nonmimority candidates. The order, as modified by the majority, is limited to a re-examination of injured claimants; 16 *51 past discrimination affords them no special status. In fact, it requires a minority applicant, whether or not he has been discriminated against, to demonstrate his superiority to either past or present non-minority candidates. As long as the majority’s concerns lie with prohibiting the innocent stranger who was not a victim of discrimination from being hired, the problem of remedying discrimination will go unresolved. Moreover, the majority ignores those potential plaintiffs who may have failed the biased examination, but who are unwilling to travel the rigorous road to relief outlined by today’s decision. Because the damage done by the unlawful hiring practices in this case extends beyond the few individuals who will be willing to submit to a re-examination, I would hold that all past applicants be given meaningful relief, as the Director’s order indicates.

The majority favors a fully nondiscriminatory set of procedures which will yield the “best qualified” candidate. Unfortunately, it can offer no assurances that more blacks will be hired. Recruiting and special training may conceivably increase the number of black employees in the Montclair Department of Public Safety, but I doubt whether they can be effective in all instances. Therefore, because they will often be the only effective means of remedying discrimination within a reasonable length of time, I find a mandate for the use of racial quotas in the Legislature’s declaration that racial discrimination “menaces” the foundations of our society.

*52 Ill

The Constitutionality of Remedial Racial Quotas

I turn now to the constitutionality of employing quotas based on racial criteria as a remedy for past discrimination. The majority did not find it necessary tp. reach the question of their legality under the fourteenth amendment to the United States Constitution because it found them violative of Article I, paragraph 5 of the New Jersey Constitution. Although I have reservations about the Director’s order which lead me to alter its terms in one respect, ante at 18, I have no such doubts about the validity of racial quotas under either the State or Eederal Constitution when they are essential to correct discrimination against minority groups.

As the majority interprets the “express and unambiguous language” of N. J. Const. (1947), Art. I, ¶ 5, the State can never rely upon race as a permissible criterion for inflicting a loss or burden upon an individual in society. It concludes that whether the purpose is benign, as in “reverse discrimination,” or malign, as in official segregation, a racial classification is equally pernicious as a violation of “the fundamental precept in a democratic society that merit, not skin color, should determine an individual’s place in society.” Ante at 22. It operates insidiously towards whites and blacks alike, depriving more qualified whites of a fair opportunity for employment or advancement and casting aspersions on the abilities of those blacks who benefit from preferential treatment. Moreover, it suggests an unworkable and undesirable goal of proportional representation of minority groups in all institutions of society. In any case, the constitutional provision itself is regarded as straightforward :

No person sliall be . . . discriminated against in the exercise of any ■civil . . . right . . . because of . . . race * * *

Nevertheless, our prior decisions suggest that we have not always viewed the State Constitution as strictly color *53 blind. In N. J. Builders, Owners and Managers Ass’n v. Blair, supra, the plaintiffs contended that a rule promulgated by the Division on Civil Rights was invalid under N. J. S. A. 10:5-12 because it required annual reports from multiple dwelling owners concerning the racial designation of tenants and applicants. A literal reading of our Constitution would have prohibited the rule, but we refused to ignore the salutary purposes of the reporting requirement in ending racial discrimination. Justice Mountain, writing for a unanimous Court, said:

It is now generally accepted that despite earlier statements describing the Constitution as being color blind, * * * those who seek to end racial discrimination must often he acutely color conscious. [60 N. J. at 336; emphasis supplied.]

This holding was consistent with our earlier decision in Morean v. Bd. of Montclair, 42 N. J. 237 (1964). There, we readily sustained a plan for the transfer and assignment of pupils within a school district, although the proposal was admittedly racially motivated and avowedly sought to control racial balance as among the several junior high schools. We rejected the contention that such action, directed to only some ,of the pupils within the district, was in violation of the equal protection clause.' This Court said:

Constitutional color blindness may be wholly apt when the frame of reference is an attack on official efforts toward segregation; it is not generally apt when the attack is on official efforts toward the avoidance of segregation. [42 N. J. at 243-244]

Moreover, absent from the Court’s holding in N. J. Builders, Owners and Managers Ass’n v. Blair, supra, was any basis for a distinction between plans for school desegregation and remedies for employment discrimination. Justice Mountain approvingly cited Porcelli v. Titus, 431 F. 2d 1254 (3 Cir. 1970), cert. den. 402 U. S. 944 , 91 S. Ct. 1612 , 29 L. Ed. 2d 112 (1971), and Contractors Ass’n of Eastern Pa. v. Secretary of Labor, 442 F. 2d 159 (3 Cir. *54 1971), cert. den. 404 U. S. 854 , 92 S. Ct. 98 , 30 L. Ed. 2d 95 (1971), even though they approve analogous instances of color-conscious relief which were ostensibly at odds with the statutory language. 60 N. J. at 337. It should be clear under our own Constitution, as it has been under the Federal Constitution, that the ideal of a color blind society does not rule out the recognition of racial factors in fashioning remedies. 17 We should heed one court’s succinct resolution of this apparent paradox:

The Constitution is both color blind a/nd color conscious. To avoid conflict with the equal protection clause, a classification that denies a benefit, causes harm, or imposes a burden must not be based on race. In that sense, the Constitution is color blind. But the Constitution is color conscious to prevent discrimination being perpetuated and to undo the effect of past discrimination.

[U. S. v. Jefferson County Board of Educ., 372 F. 2d 836 , 876-877 (5 Cir. 1966); emphasis supplied.]

However, because I find that Article I, ¶ 5 of the State Constitution should be interpreted no more stringently than the Fourteenth Amendment in restricting preferential relief for past discrimination, see Morean v. Montclair Board of Education, supra, 42 N. J. at 242-243, I turn now to the more important question — whether, and under what circumstances, the Equal Protection Clause permits the use of racially preferential hiring and promotion methods.

*55 Under equal protection analysis, it is axiomatic that governmental classifications based on racial criteria are inherently “suspect” and subject to the most “rigid scrutiny.” McLaughlin v. Florida, 379 U. S. 184 , 85 S. St. 283, 13 L. Ed. 2d 222 (1964); Bolling v. Sharpe, 347 U. S. 497 , 74 S. Ct. 693 , 98 L. Ed. 884 (1954); Sweatt v. Painter, 339 U. S. 629 , 70 S. Ct. 848 , 94 L. Ed. 1114 (1950). Suspect classifications may be sustained only when the State can demonstrate that they are required to achieve a “compelling state interest,” Loving v. Virginia, 388 U. S. 1 , 87 S. Ct. 1817 , 18 L. Ed. 2d 1010 (1967), and that no neutral classification can serve the same end. See Shelton v. Tucker, 364 U. S. 479 , 81 S. Ct. 247 , 5 L. Ed. 2d 231 (1960). Since the Japanese Internment cases, the United States Supreme Court has nominally adhered to the position that an overriding governmental interest may justify imposition of burdens on a single racial group, Korematsu v. United States, 323 U. S. 214 , 65 S. Ct. 193 , 89 L. Ed. 194 (1944); Hirabayashi v. United States, 320 U. S. 81 , 63 S. Ct. 1375 , 87 L. Ed. 1774 (1943), but application of the strict scrutiny test has failed to produce any other acceptable justification for invidious discrimination. See DeFunis v. Odegaard, 416 U. S. 312 , 340 n. 20, 94 S. Ct. 1704, 1717 , 40 L. Ed. 2d 164, 182 (1974) (Douglas, J., dissenting). Moreover, the summary invalidation of various forms of state-enforced segregation in the wake of Brown v. Board of Education, 347 U. S. 483 , 74 S. Ct. 686 , 98 L. Ed. 873 (1954), suggested that reliance on racial criteria was never constitutionally permissible. 18

*56 However, as courts have faced the task of enforcing the command in Brown to end segregated dual school systems, reliance on racial classifications became unavoidable. The Supreme Court recognized this fact in Swann v. Charlotte-Mecklenburg Board of Education, 402 U. S. 1 , 91 S. Ct. 1267 , 28 L. Ed. 2d 554 (1971), when it approved a desegregation plan which employed mathematical ratios reflecting the racial composition of the school population in assigning children to schools. Moreover, it admitted the necessity of racial classifications in the context of voting rights when it stated that a court had “not merely the power but the duty to render a decree which will so far as possible eliminate the discriminatory effects of the past as well as bar like discrimination in the future.” 19 Louisiana v. United States, 380 U. S. 145, 154 , 85 S. Ct. 817, 822 , 13 L. Ed. 2d 709, 715 (1965). See Brooks v. Beto, 366 F. 2d 1 (5 Cir. 1966) (race of grand jurors recognized); Norwalk CORE v. Norwalk Redevelopment Agency, 395 F. 2d 920 (2 Cir. 1968) (race of tenants for public housing).

Pinally, courts have found authority for remedial preferential treatment in the genesis of the fourteenth amendment, recalling “the historical fact that the central purpose. of the Fourteenth Amendment was to eliminate racial discrimination emanating from official sources in the States.” Mc *57 Laughlin v. Florida, supra, 379 U. S. at 192 , 85 S. Ct. at 288 , 13 L. Ed. 2d at 228 . See Associated General Contractors Ass’n of Mass., Inc. v. Altshuler, supra, 490 F. 2d at 16.

Thus, the remedial feature of racial quotas in employment cases sets them apart from preferential schemes designed merely to attain a racially balanced work force, and justifies reliance on racial criteria. See, e. g., United States v. Wood, Wire & Metal Lath. Int. Un., Loc. No. 46, 471 F. 2d 408, 413 (2 Cir. 1973); Anderson v. San Francisco Unified School District, 357 F. Supp. 248, 250 (N. D. Cal. 1972); Local 53 of International Association of Heat & Frost I. & A. Workers v. Vogler, 407 F. 2d 1047, 1052 (5 Cir. 1969). Justice Douglas, in the DeFunis case, discussed the propriety of using racial criteria as a corrective measure to offset biases in the selection procedures. Supra, 416 U. S. at 340, 342 , 94 S. Ct. at 1718 , 40 L. Ed. 2d at 182-183 . In disapproving the University of Washington’s application procedures favoring minority applicants, he noted that there was no evidence that minority applications had been deliberately blocked or discouraged in the past. Similarly, he said:

There was also no showing that the purpose of the school’s policy was to eliminate arbitrary and irrelevant barriers to entry by certain racial groups into the legal profession.

[ 416 U. S. at 336 n. 18, 94 S. Ct. at 1715 , 40 L. Ed. 2d at 180 n. 18]

Relying on the finding of past discrimination in this case, the Division on Civil Rights and amicus E.E.O.C. urge us to apply the rational basis test in reviewing the remedial scheme. This standard of review merely requires that the classification adopted by the State bear a reasonable relationship to a legitimate governmental interest. Massachusetts Bd. of Retirement v. Murgia, 427 U. S. 307 , 96 S. Ct. 2562 , 49 L. Ed. 2d 520 (1976); Dandridge v. Williams, 397 U. S. 471 , 90 S. Ct. 1153 , 25 L. Ed. 2d 491 (1970), *58 reh. den., 398 U. S. 914 , 90 S. Ct. 1684 , 26 L. Ed. 2d 80 (1970); Lindsley v. Natural Carbonic Gas Co., 220 U. S. 61 , 31 S. Ct. 337 , 55 L. Ed. 369 (1911). See McGowan v. Maryland, 366 U. S. 420 , 81 S. Ct. 1101 , 6 L. Ed. 2d 393 (1966).

Although I do not find these classifications to be “suspect” in the traditional sense, I cannot agree that racial quotas or any other comparable form of relief, should escape rigorous judicial review. However, benign the purpose behind “reverse discrimination,” such color conscious relief raises fundamental constitutional issues. Yet, adoption of the strict scrutiny standard suggests that racial quotas are equivalent to invidious discrimination. It also implies that they work such destructive results that they are justifiable only if the state can demonstrate a “compelling need.” Consequently, it cripples any efforts for significant change:

It would indeed be ironic and, of course, would^cut against the very grain of the amendment, were the equal protection clause used to strike down measures used to achieve real equality for persons whom it was intended to aid.

[Alevy v. Downstate Medical Center, 39 N. Y. 2d 326, 384 N. Y. S. 2d 82, 348 N. E. 2d 537 (1976)].

The proper test — and one which has been applied by most federal courts — is a modified version of the strict scrutiny standard which examines the risk that the terms of the quota will undermine the task of undoing past discrimination. As such, it bears some resemblance to the strengthened rational relation test which some judges and commentators have discerned in United States Supreme Court decisions striking down statutes on equal protection grounds where neither a suspect classification nor a fundamental interest was implicated. See Dandridge v. Williams, 397 U. S. 471, 520-521 , 90 S. Ct. 1153, 1180 , 25 L. Ed. 2d 491, 522-523 (1969) (Marshall, J., dissenting); Chicago Police Dept. v. Mosley, 408 U. S. 92 , 92 S. Ct. 2286 , 33 L. Ed. 2d 212 (1972); Reed v. Reed, 404 U. S. 71 , 92 S. Ct. 251 , *59 30 L. Ed. 2d 225 (1971); cf. Wurtzel v. Falcey, 69 N. J. 401, 408, n. 4 (1976) (Pashman, J., dissenting).

This departure from strict scrutiny has been premised on several grounds. Eirst, the racial classifications in question have not been adopted as a means of denying opportunities to any racial or ethnic group, as prior practices did. 20 They have been devised to counteract the exclusive effects of past discrimination by increasing the number of minority employees. Second, unlike the wrong emphasized in Brown v. Board of Education, they have not stigmatized any excluded group as inferior. Rather they have recognized the needs of minority persons who have been victimized by persistent forms of racism. Third, these preferences are generally employed to ameliorate the treatment accorded blacks — a purpose in keeping with the original goal of the fourteenth amendment. See Slaughter-House Cases, 83 U. S. (16 Wall.) 36, 81 , 21 L. Ed. 394 (1873); Bickel, “The Original Understanding and the Segregation Decision,” 69 Harv. L. Rev. 1 , 60 (1955). Although the fourteenth amendment is not confined to unequal treatment of blacks, the original purpose of the amendment should not be disregarded merely because its “suspect” categories have been expanded to include other minorities in analogous positions, Yick Wo v. Hopkins, 118 U. S. 356 , 6 S. Ct. 1064 , 30 L. Ed. 220 (1885); Oyama v. California, 332 U. S. 633 , 68 S. Ct. 269 , 92 L. Ed. 249 (1948); Hernandez v. Texas, 347 U. S. 475 , 74 S. Ct. 667 , 98 L. Ed. 866 (1954); Graham v. Richardson, 403 U. S. 365 , 91 S. Ct. 1848 , 29 L. Ed. 2d 534 (1971). Moreover, these measures do not prejudice an, identifiable group which is a “discrete and insular” minority disadvantaged by the majoritarian political process. See Jus *60 tice Stone’s footnote 4 in United States v. Carolene Products Co., 304 U. S. 144 , 58 S. Ct. 778 , 82 L. Ed. 1234 (1937); Ely, “The Constitutionality of Reverse Discrimination,” 41 U. Chi. L. Rev. 723 (1974).

However, even if a racial classification is not “suspect” in the strict constitutional sense when it is intended to benefit minority group members who have traditionally been subjected to invidious forms of discrimination, a preferential scheme which incorporates racial criteria must be carefully assessed to determine whether its features are reasonably designed to achieve a substantial governmental interest. Although decisions of administrative agencies should ordinarily be left undisturbed when they reflect 'special expertise and are supported by substantial evidence in the record, this more rigorous form of review should ensure that the same objective cannot be served by less onerous alternatives. In particular, such an inquiry should focus on the duration of the scheme and its impact on non-favored groups.

Here, as I have indicated, the Director’s order does serve an important public purpose of vindicating the rights of persons who have been injured by practices which are prohibited by the Law Against Discrimination. The State clearly has an overriding interest in giving full effect to this act by ensuring that aggrieved persons are not left without a remedy. It also has a stake in seeking reasonably expeditious change in the character of a public entity which has excluded minority persons by discriminatory means.

At the same time, its remedial efforts must be attuned to the nature of the discriminatory conduct and the response of the wrongdoer. Where an employer has intentionally engaged in discriminatory practices, there is good reason to impose stringent conditions in order to avoid a recurrence of similar behavior. See, e. g., Morrow v. Crisler, supra; United States v. Wood, Wire and Metal Lath. Int. Union, Local 46, supra; Western Addition Community Organization v. Alioto, supra. Likewise, such measures are justified where an employer has refused to institute, or has not yet developed, a *61 set of nondiscriminatory procedures acceptable to administrative authorities or to a court. See, e. g., N.A.A.C.P. v. Allen, supra; Boston Chapter, N.A.A.C.P. v. Beecher, supra; Vulcan Society of N. Y. C. Fire Department v. Civil Service, Com’n, supra.

In the present case, however, Montclair has cooperated with the Division on Civil Rights in devising its procedures for hiring and promotion to avoid the discriminatory consequences of its former tests and interviewing methods. It has also shown a willingness to hire minority group members. To some extent, it appears that the current racial make-up of the police and fire departments reflects a low rate of turnover. Therefore, I cannot conclude that it is necessary to extend this preferential hiring scheme to black applicants ivho have not been injured by past discrimination in order to uphold the purposes of the act. As I have noted earlier, I would revise the Director’s order to limit favored treatment to the class of black applicants who were denied eligibility for appointment on the basis of Montclair’s unrevised procedures.

I emphasize once again that this limitation on the scope of relief is not required in every ease. Different circumstances might well justify a remedial quota which encompasses persons who themselves have not been directly injured by discriminatory practices. See ante at 49. (Pashman, J., dissenting). However, I do find that anjdhing less than the relief which I have outlined would' have the unwarranted effect of leaving victims of past injustice wholly uncompensated.

Finally, I do not consider the duration of this order unduly long. Although Montclair will be subject to its provisions for approximately five years, the relatively few number of positions affected by the order makes this a reasonable period of time. Similarly, the impact of the preference on on other applicants, though not insignificant, is outweighed by the necessity of redressing the wrongs against black applicants.

*62 Accordingly, I would modify paragraph 6 of the final order to give preferential treatment only to those minority candidates who were re-evaluated according to the provisions of paragraphs 4 and 5, in order to limit preferential relief to those who were injured by the discriminatory testing procedures. I would leave paragraph 11 intact.

CONCLUSION

The majority decision today represents more than a lamentable judicial insensitivity to the difficult task of enforcing New Jersey’s anti-discrimination laws. With the majority’s sweeping requirement of constitutional color blindness, this Court has declared itself opposed to those forms of affirmative action'for .minorities which cause a perceptible loss to any member of a non-minority group. Not only has it flatly prohibited the use of any type of hiring or promotion quota as a remedy for past discrimination — a position taken by no other federal or state appellate court — but it has also invited challenges to a variety of other affirmative action plans aimed at the consequences of societal discrimination. Although I recognize that the facts of this case do not present the most egregious form of discrimination, I fear that the broad assertions of the majority’s opinion will make it virtually impossible for our State agencies to combat more flagrant abuses.

I can only conclude that the majority’s holding is a formula for another generation of delay. I respectfully dissent.

For affirmance — Chief Justices Hughes, Justices Mountain, Sullivan; Clifford and Schreiber and Judge Kolovsky — 6.

Dissenting — Justice Pashman — 1.

The majority suggests that the Hearing Examiner may have erred in relying on Griggs v. Duke Power Co., 401 U. S. 424 , 91 S. Ct. 849 , 28 L. Ed. 2d 158 (1971). Ante at 11 n. 3. However, it fails to relate these general criticisms to the ease at bar. Montclair made no attempt whatsoever to argue that its testing procedures were useful indicators of future job performance. On the contrary, the Commissioner of Public Safety testified that the Wonderlie test (which had been administered to Mr. Lige in 1971) was eliminated at the behest of the chiefs of the police and fire departments because they were dissatisfied with it. Unless the majority is willing to dispense with the requirement that the employer make some showing of job-relatedness, it must conclude that Montclair has clearly failed to rebut the complainant’s statistical showing that the tests resulted in a selection of applicants exhibiting a racial pattern significantly different from that of the pool of candidates. See Albemarle Paper Co. v. Moody, 422 U. S. 405, 425 , 95 S. Ct. 2362, 2375 , 45 L. Ed. 2d 280, 301 (1975); McDonnell Douglas Corp. v. Green, 411 U. S. 792, 802 , 93 S. Ct. 1817, 1824 , 36 L. Ed. 2d 668, 678 (1973). See also, infra at 46 (Pashman, J. dissenting).

Among the statutory provisions which concern various civil rights interests, and which preceded the enactment of the Law Against Discrimination, N. J. S. A. 10:5 — 1 et seg., in 1945, are the following: L. 1881, c. 149, p. 186 (recognizing right to a public education free from racial discrimination) ; L. 1933, c. 277 (prohibiting discrimination in public works employment on the basis of race, creed or color) ; L. 1938, c. 295 (prohibiting discrimination by State, counties or municipalities on the basis of age) ; L. 1941, o. 247 (prohibiting discrimination in matters of compensation, promotion or dismissal on the basis of sex or marital status) ; and L. 1942, c. 114 (prohibiting discrimination in public works or defense contract employment on the basis of race, color or creed).

Because the Commission served a function which was primarily educational and informational in nature, and because it lacked any effective enforcement powers, its statutory authorization was repealed in 1945 by L. 1945, c. 170 concurrent with the enactment of the Law Against Discrimination.

The implicit shift in emphasis from education to enforcement, upon which the Division on Civil Rights is founded, was not completed until 1960 with the creation of that agency by L. 1960, c. 59. Under the original Law Against Discrimination, a Division Against Discrimination was placed under the auspices of the Department of Education, and derived its powers under former Title 18 (“Education”), N. J. S. A. 18:25-1 et seq. For administrative purposes, particularly that of enforcement, the agency was reconstituted as the Division on Civil Rights in 1960, and transferred to the Department of Law and Public Safety in 1963. L. 1963, c. 40.

Contrary to the majority’s implication, ante at 18, the question presented by this case is one of first impression. In this regard, the majority’s reference to the 1965 Division on Civil Rights publication, JSmployer Guide to the New Jersey Anti-Discrimination Laio, is misplaced. The quoted section of the pamphlet refers to a situation in which an employer unilaterally attempts to impose a quota on the work force which he hires. Such an action, regardless of how beneficently intended it may be, constitutes favorable and, hence, discriminatory treatment on behalf of a particular group. This is to *33 ba distinguished from a situation such as that in the instant case where a governmental agency attempts to correct the effects of past discriminatory practices.

Rios v. Enterprise Association Steamfitters Local 638 of U. A., 501 F. 2d 622, 628-31 (2 Cir. 1974); United States v. N. L. Industries, Inc., 479 F. 2d 354, 377 (8 Cir. 1973); Southern Illinois Builders Association v. Ogilvie, 471 F. 2d 680, 683-86 (7 Cir. 1972); United States v. Ironworkers Local 86, 443 F. 2d 544, 552-53 (9 Cir. 1971); United States v. International Brotherhood of Electrical Workers, Local No. 38, 428 F. 2d 144, 149-51 (6 Cir. 1970); Local 53 of International Ass’n of Heat & Frost I. & A. Workers v. Vogler, 407 F. 2d 1047, 1053-54 (5 Cir. 1969); Associated General Contractors of Massachusetts, Inc. v. Altshuler, 490 F. 2d 9, 16-18 (1 Cir. 1973); Carter v. Gallagher, 452 F. 2d 315, 330 (8 Cir. 1971); Contractors Association of Eastern Pennsylvania v. Secretary of Labor, 442 F. 2d 159, 172, 176-77 (3 Cir. 1971).

It is precisely for this reason that Kirkland v. N. Y. State Dep’t of Correctional Serv., 520 F. 2d 420 (2 Cir. 1975), and the test which the majority finds implicit in that case, are inapposite to the present set of facts. As the Court of Appeals expressly found, the court-ordered quota was overbroad in its operation and effect:

Insofar as the order appealed from imposes permanent quota restrictions upon those who seek advancement by means of a court-approved job-related civil service examination we reverse. The benefits of such order are not limited to the plaintiff class. Its quota requirements are based upon a shifting and rapidly expanding racial base, loholly unrelated to the consequences of any alleged past discrimination.

[520 F. 2d at 430; emphasis supplied.]

Kirkland v. N. Y. State Dep’t of Correctional Serv., supra, represents a departure from Bridgeport Guardians, Inc. v. Members of Bridgeport Civil Service Commission, supra, and from other decisions by the Second Circuit, (see the opinions of Judges Mansfield and Kaufman dissenting from the denial of en banc reconsideration, 531 F. 2d 5, 5-11 (1975)) and has no counterpart in the Third Circuit’s opinions. See United States v. International Union of Elevator Constructors, Local Union No. 5, 538 F. 2d 1012 (3 Cir. 1976); Erie Human Relations v. Tullio, 493 F. 2d 371 (3 Cir. 1974). Moreover, even Kirkland fails to support the majority’s uncompromising rejection of all racial quotas. Supra, 520 F. 2d at 427. It may be noteworthy that Judge Smith, writing for the panel in Equal Employment Opportunity Com’n v. Local 638, 532 F. 2d 821 (2 Cir. 1976) — a post-Kirkland case — expressed his own opinion that a temporary quota for entrants to a union apprenticeship program was an appropriate remedy. Id. at 831-832 . Furthermore, Judge Feinberg, in concurrence, suggested that the remedy could be limited to giving preferential treatment to identifiable plaintiffs who were themselves discriminatorily denied jobs — a remedy which would grant relief to the class of applicants who failed the 1971 examination in this case. Id. at 834 . See infra at 51 (Pashman, J., dissenting).

Two other cases cited by the majority, Cramer v. Virginia Commonwealth University, 415 F. Supp. 673 (E. D. Va. 1976) and Flanagan v. President & Directors of Georgetown College, 417 F. Supp. 377 (D. D. C. 1976), ante at 20 did not involve instances of *40 past discrimination similar to the practices in this case. However, it is interesting that the District Court in Cramer rejected any form of affirmative action program granting preference on the basis of race or sex, even though the Fourth Circuit Court of Appeals had just recently endorsed the use of racial quotas for some purposes in Patterson v. American Tobacco Co. supra. The Court’s hostility to these plans is apparent from the following excerpt:

The primary — the only — beneficiaries of affirmative action plans and their siblings are the thousands of persons engaged in the civil rights business, bureaucrats, lawyers, lobbyists and politicians. The persons who are suffering are the ostensible objects of the plans’ solicitude, and persons, such as plaintiff herein, who get flattened by the civil rights steamroller. [ 415 F. Supp. at 681 ]

The history of this Court’s continuing efforts since Robinson v. Cahill, 62 N. J. 473 (1973), to guarantee equal educational opportunity to the State’s schoolchildren should give the majority reason to hesitate before concluding that “coequality of opporunity in education” is the key to equal employment opportunity. See our opinions and orders after Robinson I, supra: 63 N. J. 196 (1973) (Robinson II) ; 67 N. J. 35 (1975) (Robinson III) ; 69 N. J. 133 (1975) (Robinson IV) ; 69 N. J. 449 (Robinson V); 70 N. J. 155 (Robinson VI). Contrary to the majority’s assumption, temporary quotas are more likely to produce lasting results because they provide a *44 means by which minority persons can secure jobs in significant numbers. With this foothold, the informal processes of job recruitment attracts friends and relatives to the same work place. Professor Blumrosen refers to a “take-off point” where numerical standards will guarantee jobs for enough minority workers so that these ordinary processes will be sufficient to ensure fair employment practices. “Quotas, Common Sense, and Law in Labor Relations: Three Dimensions of Equal Opportunity,” 27 Rutgers L. Rev. 675 , 686 (1974).

Tke majority’s reference to State constitutional and statutory provisions which require civil service appointments and promotions to be made according to merit and fitness, as far as practicable, does highlight a potential conflict with N. J. Const. (1947), Art. I, ¶5, and N. J. S. A. 10:5-1 et seq. Ante at 22 n. 7. However, its statement of the conflict between coequal constitutional and statu *45 tory provisions does not dictate the conclusion that the State’s anti-discrimination laws should yield to the merit principle, as defined by the civil service commission. In analogous settings, the federal courts have evaluated the criteria employed by the governmental unit to determine whether they were related to job performance. When no showing of job relatedness was forthcoming, these courts have required formulation of more suitable selection procedures and have imposed temporary quotas. For discussions of the competing factors, see Carter v. Gallagher, supra, 452 F. 2d at 322-324 ; Boston Chapter, N.A.A.C.P., Inc. v. Beecher, 504 F. 2d 1017, 1022 (1st Cir. 1974); N.A.A.C.P. v. Allen, supra, 493 F. 2d at 618-619. But see Kirkland v. N. Y. State Dept. of Correctional Serv., supra, 520 F. 2d at 428-429.

This is not to say that only black policemen can work in black areas, or that the black community deserves a certain level of representation in the police department. Nor does a public agency have a legal duty to maintain a racial balance in its work force which reflects the racial composition of the community. However, these considerations may enter into an employer’s judgment that a minority applicant is better qualified for a particular type of work. Whether or not this conclusion is desirable, it suggests that merit may encompass criteria which are directly linked to race. The danger in this practice, of course, is the risk that it will be used to channel minority employees into a limited area which prevents them from advancing.

The Attorney General’s brief for tbe Division on Civil Rights points out that only three vacancies per year are likely to occur in the fire department in the foreseeable future. Thus even if every vacancy were filled by blacks, the black representation would not approximate the racial composition of Montclair (2T.2%) for seven years.

It is interesting to note that President-elect Carter, in discussing his appointments to positions in the federal government, has an- *49 pounced that be will select large numbers of minority persons “to compensate for their exclusion in the past.” United Press International News Report, November 18, 1976.

Xhe majority’s reference to Mr. Lige’s complaint, (mte at 13 n. 4, easts doubt on even his right to relief, apparently because no *51 fireman’s position had been filled and he had not testified to his willingness to accept the job, if offered. However, paragraph 5 of the Director’s order merely requires retesting of Mr. Lige, and grants him placement on a priority waiting list for future job openings. Surely, there is no conceivable reason to deny him this relief simply because he failed to testify on this point; indeed, his prosecution of this complaint suggests that he would accept the position. In any case, he is entitled to have the option of rejecting the job.

Of course, the majority’s constitutionally mandated proscription against racial quotas will not wholly end their use in New Jersey. Aggrieved persons are still free to pursue their federal claims under Title VII after initially lodging a complaint with the Division on Civil Rights. See 42 U. S. C. A. § 2000-5 (c). Given the Third Circuit’s consistent approval of employment quotas as a remedy for past discrimination, United States v. International Union of Elevator Constructors, Local Union No. 5, supra; Erie Human Relations Commission v. Tullio, supra; Porcelli v. Titus, supra, litigants who seek effective relief will look upon the procedures of the Division as superfluous and seek to by-pass them, if possible.

This string of per curiam decisions appeared to go beyond Brown’s emphasis on the inherently inferior nature of a separate facility. See, e. g., New Orleans City Park Improvement Ass’n v. Detiege, 358 U. S. 54, 79 S. Ct. 99 , 3 L. Ed. 2d 46 (1958), aff’ing 252 F. 2d 122 (5 Cir. 1958); Gayle v. Browder, 352 U. S. 903 , 77 S. Ct. 145 , 1 L. Ed. 2d 114 (1956), aff’ing 142 F. Supp. 707 . (M. D. Ala. 1956); Holmes v. City of Atlanta, 350 U. S. 879 , 76 S. Ct. 141 , 100 L. Ed. 776 (1955), rev’ing 223 F. 2d 93 (5 Cir. 1955). See *56 Wechsler, “Toward Neutral Principles of Constitutional Law,” 73 Harv. L. Rev. 1 , 22 (1959) ; Hellerstein, “The Benign Quota, Equal Protection, and ‘The Rule in Shelley’s Case,’ ” 17 Rutgers L. Rev. 531 (1963).

The United States Supreme Court’s recent grant of certiorari in Milliken v. Bradley, - U. S. -, 97 S. Ct. 380 , 50 L. Ed. 2d 325 (1976), suggests that it may define with more precision the permissible scope of federal court-ordered remedies aimed at the effects of past illegal school segregation. In addition, the Court’s grant of a stay to the University of California from enforcement of the California Supreme Court’s decision in Bakke v. Regents of University of California, 18 Cal. 3d 34 , 132 Cal. Rptr. 680 , 553 P. 2d 1152 (1976), indicates that the question which escaped review in DeFunis may finally be decided. See - U. S. -, 97 S. Ct. 373 , 50 L. Ed. 2d 321 (1976).

This was the ease in Taylor v. Leonard, 30 N. J. Super. 116 (Ch. Div. 1954), cited by the majority. Ante at 22. The quotas were utilized to prevent blacks from occupying public housing units in greater numbers. Moreover, they were part of a larger scheme of segregation which confined black tenants to a specified section of the housing project. Id. at 118.