Opinion
Review Granted Aug. 21, 1986.
Opinions on pages 1063-1249 omitted.
Richard J. Moore, Co. Counsel, William E. Runstrom, Senior Deputy Counsel, Alameda County, Oakland, for petitioner and respondent.
[226 Cal.Rptr. 795]John K. Van de Kamp, Atty. Gen., Andrea Sheridan Ordin, Chief Asst. Atty. Gen., Marian M. Johnston, Deputy Atty. Gen., San Francisco, for respondent and appellant.
Vivian Schneider, San Francisco, for real party in interest.
SMITH, Associate Justice.
The issue is whether the Fair Employment and Housing Commission has the authority to award compensatory damages. We hold that it does.
I
To start, we describe the procedure of the Fair Employment and Housing Act (the Act).
The Act establishes that freedom from employment discrimination is a civil right. (Gov.Code, § 12921.) It declares that [226 Cal.Rptr. 796] such discrimination is against public policy and is unlawful. ( §§ 12920, 12940.) The Act sets up a comprehensive scheme to realize this state's public policy "to protect and safeguard the right of all persons to seek, obtain, and hold employment without discrimination...." ( § 12920; see also State Personnel Bd. v. Fair Employment & Housing Com. (1985) 39 Cal.3d 422, 428, 217 Cal.Rptr. 16, 703 P.2d 354.)
All statutory section references hereafter are to the Government Code unless otherwise designated.
"The question whether the FEHC can award compensatory and punitive damages was reserved by us in Commodore Home Systems v. Superior Court (1982) 32 Cal.3d 211, 215 [185 Cal.Rptr. 270, 649 P.2d 912] ..., where we held that such damages may be awarded by a superior court in a private action under the FEHA." (State Personnel Bd. v. Fair Employment & Housing Com. (1985) 39 Cal.3d 422, 429, 217 Cal.Rptr. 16, 703 P.2d 354.)
That scheme includes two administrative bodies--the Department of Fair Employment and Housing (the Department) and the Fair Employment and Housing Commission (the Commission). The Department investigates, conciliates, and prosecutes discrimination complaints. ( §§ 12930, 12961-12963.) The Department bears the expense of these functions, including the expense of an attorney to try the case. ( § 12969.) The Commission adjudicates complaints and makes rules regarding employment discrimination. ( § 12935.) It also promulgates regulations to implement the Act, provides technical assistance, and gathers statistics on the public employment work force. ( § 12935.) As an example of its power to promulgate regulations, the Commission in 1980 adopted California Administrative Code, title 2, section 7286.9, subdivision (c): "While normal monetary relief shall include relief in the nature of back pay, reasonable exemplary or compensatory damages may be awarded in situations involving violations which are particularly deliberate, egregious or inexcusable."
This regulation was repealed in 1985 because it used an incorrect and misleading standard. (Cal.Admin.Register 85, No. 1-Z--1-4-85.)
Unless otherwise indicated, all statutory references are to the Government Code.
A person who claims that he or she is a victim of employment discrimination must file a complaint with the Department. The Department then can investigate, take depositions, issue subpoenas, pose interrogatories and request documents. ( §§ 12963, 12963.1, subd. (c), 12963.2, 12963.3, 12963.4.) Rose Brown, complainant in this action, filed her complaint with the Department. In it she alleged that her former employer, the Peralta Community College District, had violated the Act by firing her for refusing the sexual advances of her former supervisor.
Once a complaint is filed the Department can take various steps. It can attempt to remedy the unlawful practice through conference, conciliation, or persuasion. ( § 12965, subd. (a).) It can issue a right-to-sue letter, which allows the complainant to pursue a private court action. The letter is sent if the Department decides it will not issue an accusation or, automatically, if the Department does not issue an accusation within 150 days. ( § 12965, subd. (b).) A complainant cannot sue in court unless the Department issues this letter. The Department can also issue its own accusation, which is the administrative equivalent of a civil complaint. ( § 12965.) If the Department issues an accusation, it then steps into the role of prosecutor and advocate on behalf of the complainant, and also bears the costs of these functions. ( § 12969.) This latter course is what occurred in this case; the Department issued an accusation on behalf of Rose Brown and took over her case.
Once an accusation is issued, the Commission comes into the picture. The Commission adjudicates accusations by holding hearings. Commission hearings are full evidentiary proceedings governed by the California rules of evidence and conducted in accordance with the California Administrative Procedures Act. ( §§ 11500 et seq., 12972.) The hearings are presided over by an administrative law judge. ( § 11512, subd. (a).) If it feels that a remedy is appropriate, the Commission can issue cease and desist orders, order hiring, reinstatement, promotion, or back pay, or can take action "as, in the judgment of the commission, will effectuate the purposes" of the Act. ( § 12970, subd. (a).) In this case, the Commission held a hearing and later adopted the proposed decision of the administrative law judge that Peralta had discriminated against Rose Brown by sexually [226 Cal.Rptr. 797] harassing her, and had caused Rose Brown to suffer emotional and physical stress. The Commission ordered Peralta to cease and desist from discriminating against female employees on the basis of sex, to develop a written policy and training program, to inform all employees of the policy regarding sexual harassment, and to pay Rose Brown $20,000 in compensatory damages.
The Commission's ruling may be reviewed by a petition for administrative writ of mandate. (Code Civ.Proc., § 1094.5.) If an employer petitions, the substantial evidence test applies. If an employee petitions, the independent judgment test is used. (American National Ins. Co. v. Fair Employment & Housing Com. (1982) 32 Cal.3d 603, 607, 186 Cal.Rptr. 345, 651 P.2d 1151; Kerrigan v. Fair Employment Practice Com. (1979) 91 Cal.App.3d 43, 52, 154 Cal.Rptr. 29, cert. den., 444 U.S. 930, 100 S.Ct. 273, 62 L.Ed.2d 187.) In this case, Peralta filed a petition for writ of mandate. The superior court denied each part of the writ except the part involving damages. It ordered that the award of compensatory damages was not within the authority of the Commission, and struck the award.
The Commission is entitled to appeal the adverse decision of the superior court; that is what occurred here. The Commission contends that it has authority to award compensatory damages under the Act.
II
Since the Commission's authority must come from the Act, the issue is, does the Act give the Commission the power to award compensatory damages?
A related issue, whether the Commission has authority to award punitive damages, is currently pending before our Supreme Court in Dyna-Med., Inc. v. Fair Employment & Housing Com., L.A. 32145, review granted January 23, 1986.
The remedial section of title VII provides in part that "If the court finds that the respondent has intentionally engaged in ... an unlawful employment practice, ... the court may enjoin the respondent from engaging in such unlawful employment practice, and order such affirmative action as may be appropriate, which may include, but is not limited to, reinstatement ... with or without back pay ... or any other equitable relief as the court deems appropriate."
As a starting point, we review the relevant language of the relevant statutes. The basic remedy section of the Act, section 12970, subdivision (a), states: "If the commission finds that a respondent has engaged in any unlawful practice under this part, it shall state its findings of fact and determination and shall issue and cause to be served on the parties an order requiring such respondent to cease and desist from such unlawful practice and to take such action, including, but not limited to, hiring, reinstatement or upgrading of employees, with or without back pay, restoration to membership in any respondent labor organization, as, in the judgment of the commission, will effectuate the purposes of this part...." (Emphasis added.)
It is true that the statute does not mention actual or compensatory damages. It is also true that the statute's language is expansive. The "judgment of the commission" is the only explicit limitation on the type of remedies allowed. The phrase "including, but not limited to" explicitly does not limit but instead enlarges the Commission's authority. (See American National Ins. Co. v. Fair Employment & Housing Com., supra, 32 Cal.3d at p. 611, 186 Cal.Rptr. 345, 651 P.2d 1151, dis. opn. of Mosk, J. ["including, but not limited to" meant as a "term of enlargement"].) And the Legislature has directed that the Act be construed "liberally." ( § 12993.) Thus, the plain language of the statute would seem to allow the type of damages at issue, if the judgment of the commission is that these damages are necessary.
However, the language of a statute " 'should not be given a literal meaning if doing so would result in absurd consequences which the Legislature did not intend.' [Citations.]" (Brown v. Superior Court (1984) 37 Cal.3d 477, 485, 208 Cal.Rptr. 724, 691 P.2d 272, quoting Younger v. Superior Court (1978) 21 Cal.3d 102, 113, 145 Cal.Rptr. 674, 577 P.2d 1014.) Our task is to try to figure out what the Legislature intended with the current Fair Employment and Housing Act scheme. To do this, we look first at the expressed purposes of the law. (See Brown v. Superior Court, supra, 37 Cal.3d at p. 485, 208 Cal.Rptr. 724, 691 P.2d 272.)
[226 Cal.Rptr. 798]The purpose of the Act, as spelled out in section 12920, is to "provide effective remedies which will eliminate such discriminatory practices" that are contrary to the public policy of the state. (See Commodore Home Systems, Inc. v. Superior Court (1982) 32 Cal.3d 211, 220, 185 Cal.Rptr. 270, 649 P.2d 912.) The question is whether compensatory damages are an effective remedy that will eliminate discrimination.
Compensatory damages include both out-of-pocket losses and actual damages for emotional distress. That the type of injury leading to compensatory damages occurs cannot be questioned. Courts have consistently recognized that emotional and mental injuries often occur as a result of discrimination. (Woods-Drake v. Lundy (5th Cir.1982) 667 F.2d 1198, 1203; Alcorn v. Anbro Engineering, Inc. (1970) 2 Cal.3d 493, 497-498, 86 Cal.Rptr. 88, 468 P.2d 216; Hess v. Fair Employment & Housing Com. (1982) 138 Cal.App.3d 232, 237, 187 Cal.Rptr. 712.) The state Legislature has recognized this concept in its 1982 amendment to the Act. "Loss of tangible job benefits shall not be necessary in order to establish harassment." ( § 12940, subd. (i).)
Various reasons convince us that these damages are a necessary and effective remedy. There are only so many ways of combatting discrimination: The Commission can attempt to educate those who do not understand, punish those who do discriminate, and deter those who might discriminate.
Although education, conference and conciliation are important goals of the Act, in many cases those procedures are not effective and the Department is forced to "litigate." When this occurs, compensatory damages are effective at both punishing and deterring. If employers are forced to compensate for all the effects of their unlawful acts, if they are hit in the pocketbook where it hurts, they will be less likely to discriminate in the future. The awarding of damages will not only deter the wrongdoer, it will send a message to other employers that they must pay for the consequences of their discrimination. The state's policy goal that all persons be able to seek and hold employment without discrimination will have a better chance of being effectuated.
Furthermore, the availability of compensatory damages may actually aid in the important conference and conciliation goals of the Act. Employers may be more willing to confer and negotiate if they know that the Commission can impose damages against them. The entire Act is made more effective if the Commission has the full complement of remedies.
Thus, the plain language and purposes of the Act are evidence that the Legislature intended to allow the Commission to award compensatory damages. The Commission directs us to further evidence of legislative intent. Because the Act has been amended several times since the Commission explicitly gave itself the authority to award damages, and the Legislature has not changed the remedy language, the Commission argues that the Legislature has impliedly approved their interpretation. "[W]here the legislature has failed to modify the statute so as to require an interpretation contrary to the regulation, that fact may be considered to be an indication that the ruling was consistent with the Legislature's intent." (Action Trailer Sales, Inc. v. State Bd. of Equalization (1975) 54 Cal.App.3d 125, 133-134, 126 Cal.Rptr. 339.)
The Commission's interpretation of the Act it enforces is entitled to great deference. (Judson Steel Corp. v. Workers' Comp. Appeals Bd. (1978) 22 Cal.3d 658, 668, 150 Cal.Rptr. 250, 586 P.2d 564.) On the issue of compensatory damages, the Commission has utilized two methods of interpretation, a regulation ( § 12935, subd. (a)) and a precedential opinion ( § 12935, subd. (h)). Title 2, section 7286.9, of the California Administrative Code, stated: "While normal monetary relief shall include relief in the nature of back pay, reasonable exemplary or compensatory damages may be awarded in situations involving violations which are particularly deliberate, egregious or inexcusable." Although [226 Cal.Rptr. 799] this regulation was repealed in 1985 because its standard was misleading (see fn. 2, ante ), the Commission has issued the precedential decision DFEH v. Ambylou Enterprises, Inc. (1982) FEHC Dec. No. 82-06 (Cont.Ed.Bar precedential decisions 1982-1983), which held that the standards normally used by courts in assessing damages should be used by the Commission.
Peralta argues that the Commission's own interpretation of its authority is not valid here because it expands the Commission's power beyond the Legislature's intent. Peralta argues that the Legislature did not intend to allow the Commission to award compensatory damages. To support this, Peralta looks at two indicators: a comparison with the housing side of the Act and a comparison with federal precedent. The housing Act's remedy provision allows the Commission to award "the payment of punitive damages in an amount not to exceed one thousand dollars ($1,000) ... and the payment of actual damages." ( § 12987, subd. (2).) Peralta argues that the Legislature knows how to specifically provide for punitive and compensatory damages when it wants to, and since those damages are not mentioned in employment, they are not available.
The housing and employment sections of the Act were not originally connected. At the outset, employment discrimination was covered by the California Fair Employment Practice Act, former Labor Code sections 1410 et seq. Housing discrimination was covered by the Hawkins Act (Stats.1959, ch. 1681, § 1, p. 4074 et seq., former Health & Saf.Code, § 35730), and later by the Rumford Act (Stats.1963, ch. 1853, § 2, p. 3823 et seq., former Health & Saf.Code, § 35738; see Commodore Home Systems, Inc. v. Superior Court, supra, 32 Cal.3d 211, 225-227, 185 Cal.Rptr. 270, 649 P.2d 912, dis. opn. of Richardson, J.) It was not until 1980 that the employment and housing sections were joined. (Stats.1980, ch. 992, § 4, pp. 3138-3167.) Thus, the two sections were not written as part of the same legislation, and each had its origin in a different place.
The remedy section of the employment Act is similar to section 10(c) of the National Labor Relations Act (NLRA) (29 U.S.C. §§ 151 et seq., 160(c)), which did not contain an explicit provision for damages. Contrastingly, the housing section was not originally modeled on the NLRA; its original version did contain a provision for an award of damages. (Former Health & Saf.Code, § 35730 [damages of not less than $500].) The damages provision stayed in the housing Act through various amendments. (Stats.1963, ch. 1853, § 2, p. 3823 et seq. [commission empowered to order violator to pay damages not exceeding $500]; Stats.1975, ch. 280, § 1, p. 701 [damage award increased to $1,000].) That each section of the Act was originally conceived separately provides an explanation for why one explicitly allows damages and the other does not. Furthermore, arguing that the absence of specific mention of damages in the employment Act is significant ignores the fact that when the Legislature wants to limit an agency's discretion it obviously knows how to do so; expansive language is not the way.
Section 10(c) of the NLRA directs the National Labor Relations Board upon a finding of an unfair labor practice to issue a cease and desist order requiring the violator to "take such affirmative action including reinstatement of employees with or without back pay, as will effectuate the policies of [the Act]...." This language has been interpreted as not allowing punitive damages. (Edison Co. v. Labor Board (1938) 305 U.S. 197, 236, 59 S.Ct. 206, 219, 83 L.Ed. 126.)
At the time of the events here involved, that statute provided as follows: "(b) If an accusation is not issued within 150 days after the filing of a complaint, or if the department earlier determines that no accusation will issue, the department shall promptly notify, in writing, the person claiming to be aggrieved. Such notice shall indicate that the person claiming to be aggrieved may bring a civil action under this part against the person, employer, labor organization or employment agency named in the verified complaint within one year from the date of such notice. The superior courts of the State of California shall have jurisdiction of such actions. Such an action may be brought in any county in the state in which the unlawful practice is alleged to have been committed, in the county in which the records relevant to such practice are maintained and administered, or in the county in which the aggrieved person would have worked or would have had access to the public accommodation but for the alleged unlawful practice, but if the defendant is not found within any such county, such an action may be brought within the county of defendant's residence or principal office. Such actions may not be filed as class actions or may not be maintained as class actions by the person or persons claiming to be aggrieved where such persons have filed a civil class action in the federal courts alleging a comparable claim of employment discrimination against the same defendant or defendants. In actions brought under this section, the court, in its discretion may award to the prevailing party reasonable attorney fees and costs except where such action is filed by a public agency or a public official, acting in an official capacity." This section was amended in 1984. Among other changes, the statute now permits the aggrieved person to file an action in either the superior, municipal or justice court. (Stats.1984, ch. 217, § 1, p. ----; ch. 420, § 1.5, p. ----.)
If the Commission is already empowered to award actual damages in housing cases, then the arguments that the Commission lacks adequate procedure and that there is no precedent for this type of award are weakened. The question also arises as to why housing discrimination victims should be entitled to more relief than employment discrimination victims. In his Commodore dissent, Justice Richardson suggested that perhaps damages were seen as necessary in housing cases because passage of time would make other remedies impossible or impracticable, whereas employment remedies, [226 Cal.Rptr. 800] such as reinstatement and back pay, were less likely to become unavailable. (Commodore Home Systems, Inc. v. Superior Court, supra, 32 Cal.3d 211, 226, 185 Cal.Rptr. 270, 649 P.2d 912.) This explanation ignores the fact that traditional employment remedies are often not available to a person wrongfully fired--back pay awards are offset with interim earnings and reinstatement may not be desirable or even feasible to an employee. Furthermore, it is difficult to see why there would be less need to make whole a victim of employment discrimination than a victim of housing discrimination.
For example, Rose Brown did not ask for reinstatement in this case.
"Trial by jury is an inviolate right and shall be secured to all...." (Cal.Const., art. I, § 16.)
In further discussing the Legislature's intent, Peralta argues that federal cases construing federal statutes are instructive. Since the remedy provisions in title VII of the Civil Rights Act (42 U.S.C. § 2000e-5(g)) and section 10(c) of the National Labor Relations Act (29 U.S.C. § 151 et seq.) (NLRA) are so similar to the remedy section of the California Act, Peralta asserts that our Act should be interpreted as those have to not allow compensatory damages.
We acknowledge the similarities in language. We also acknowledge that other states' statutes with language similar to the language in California's statute have disallowed damages. (See, e.g. Pennsylvania Human Relations Com'n v. Zamantakis (1978) 478 Pa. 454, 387 A.2d 70, 72-73.) However, the differences between the NLRA, title VII, others states' acts, and our own convince us that we should not let interpretations of other language control our interpretation of our language. (See Commodore Home Systems, Inc. v. Superior Court, supra, 32 Cal.3d 211, 216-217, 185 Cal.Rptr. 270, 649 P.2d 912.)
Title VII's language, while similar to our Act's, contain one glaring difference. The court may enjoin a violator and order action as may be appropriate, "which may include, but is not limited to, reinstatement or hiring of employees, with or without back pay ... or any other equitable relief as the court deems appropriate...." (42 U.S.C. § 2000e-5(g), emphasis added.) Peralta argues that the term "equitable" is not determinative, but we are not persuaded. (See Miller v. Texas State Bd. of Barber Examiners (5th Cir.1980) 615 F.2d 650, 654 [court relied on the term "equitable" in determining relief].) The absence of such a term from our Act is conspicuous.
The NLRA's language is also similar to our Act's, but the purpose of that act is very different from ours. The NLRA exists to prevent industrial unrest and strife. Our Act exists to remedy and eliminate specific discriminatory practices. (See Claiborne v. Illinois Central Railroad (1975) 401 F.Supp. 1022, 1024-1025 [comparing the NLRA with title VII].) This difference in purposes suggests differences in effective remedies; compensatory damages are more geared toward punishing and deterring and thus ending discrimination. They are less suited to creating a spirit of cooperation between labor and management.
Another crucial difference between California's Act and the federal acts (and some state acts as well) is that two parallel routes are provided for resolution of claims in California: an administrative route and a judicial route. A claimant is only entitled to use one of these routes. Since the California Supreme Court has already declared that compensatory damages are available in court actions under the Act (see Commodore Home Systems, Inc. v. Superior Court, supra, 32 Cal.3d 211, 221, 185 Cal.Rptr. 270, 649 P.2d 912), a problem of equal protection might arise if those damages were not available to the Commission; similarly situated claimants might receive different relief depending on which forum they used. This concern about parallel remedies, discussed more fully at pages 801 - 802, infra, is not a consideration with the NLRA or with title VII.
One other distinctive feature of our Act deserves mention: the separation of the prosecution from the adjudication functions. This separation, which does not exist under the NLRA, or under many states' [226 Cal.Rptr. 801] acts (see, e.g., Pennsylvania Human Relations Com'n v. Zamantakis, supra, 387 A.2d 70, 72), provides protection against bias and unchecked discretion of the Commission. This difference, and the others mentioned, diminishes the weight of other jurisdictions' precedents.
Peralta also argues that Commodore shows that the California Supreme Court disapproves of allowing the Commission these damages. Peralta's argument is that the court in Commodore would have said that damages were available under the Act if it thought that statutory authority existed. Since the court could not find statutory authority, it was forced to rule that the court was not bound by the Act. We decline to read so much into Commodore. We take at face value the court's comment that the ability of the agency to award damages was "a question we need not decide." (Commodore Home Systems, Inc. v. Superior Court, supra, 32 Cal.3d 211, 220, 185 Cal.Rptr. 270, 649 P.2d 912.)
Peralta tries to infer legislative intent from inaction by the Legislature. Peralta argues that a bill was introduced in 1976 to give authority to the Commission to award up to $500 in damages in employment discrimination cases. (Assem.Bill No. 3124 (1975-1976 Reg.Sess.) § 21.) Since this bill was defeated, Peralta argues that the power to award damages should not be implied. Peralta also argues that the Legislature amended the housing remedies in 1981 and added sexual harassment in 1982, and that these would have been "excellent times" to amend the employment remedies if the Legislature had wanted to. Peralta's speculation from this legislative inaction is not persuasive. Unpassed bills "[a]s evidences of legislative intent ... have little value." (Miles v. Workers' Comp. Appeals Bd. (1977) 67 Cal.App.3d 243, 248, fn. 4, 136 Cal.Rptr. 508.) So, too, do unproposed ones.
Apart from discussions of legislative intent, we find one strong reason in favor of the Commission's power to award compensatory damages. Two avenues of relief are available under the Act--administrative and judicial procedures. The California Supreme Court has already held that damages are available to those who can pursue the judicial remedy. (Commodore Home Systems, Inc. v. Superior Court, supra, 32 Cal.3d 211, 221, 185 Cal.Rptr. 270, 649 P.2d 912.) Allowing compensatory damages to one group of aggrieved complainants but denying them to another creates a disparate situation that may ultimately frustrate, rather than effectuate, the purposes of the Act.
Before an aggrieved party can file a civil action, that party must first go to the Department with a complaint. The Department has the choice of pursuing the action itself or issuing a right-to-sue letter to the aggrieved. If the Commission could not award compensatory damages, there would be incentive for complainants to bypass the administrative forum, and incentive for the Department not to pursue the more egregious cases. More cases would be brought to an already crowded court system. This would also have the effect of eliminating the possibility of conference and conciliation, goals which are crucial to the Act.
The court noted in Commodore Home Systems, Inc. v. Superior Court, supra, 32 Cal.3d 211 at page 218, 185 Cal.Rptr. 270, 649 P.2d 912, footnote 8, that right-to-sue letters are routinely issued to complainants who want to sue in court.
As earlier noted, both compensatory and punitive damages are recoverable in a court of law under this act. (Commodore Home Systems, Inc. v. Superior Court, supra, 32 Cal.3d 211, 221, 185 Cal.Rptr. 270, 649 P.2d 912.)
Originally, administrative resolution of complaints was the only choice. Even after the judicial option was added, the Legislature still required complainants to go to the Department first, denying them the opportunity to go to court unless they first took their complaint to the Department. This procedure demonstrates the Legislature's preference for administrative resolution of these types of complaints. Allowing different remedies in different forums would subvert this preference.
Different remedies in different forums might also create two categories of claimants: those who cannot afford to take their own case to court and thus need the Department to pursue their claim will not be entitled to full relief, regardless of the [226 Cal.Rptr. 802] merit of their claim; those who can afford to hire a private lawyer and file a civil action will have the chance to be completely compensated. Distinguishing between complainants not on the merit of their claims but on their ability to afford a private attorney is not desirable and might create equal protection problems. This practical concern, combined with the other indicators of legislative intent, leads to our conclusion that the Commission has authority to award compensatory damages.
We also address the arguments most often advanced in opposition to allowing the power to award compensatory damages to an administrative body like the Commission. One argument is that the types of remedies spelled out in the statute are all equitable in nature and thus only equitable powers were meant to be given to the Commission. (See E.D. Swett, Inc. v. Com'n for Human Rights (1983) 124 N.H. 404, 470 A.2d 921, 927.) This argument relies on the principle of ejusdem generis--where general words follow the enumeration of particular classes of things the general words will be construed as applicable only to things of the same general nature as those enumerated. The rationale for this is that if the Legislature meant the general words to be used without restriction, it would not have mentioned the particular things. (See Sears, Roebuck & Co. v. San Diego County Dist. Council of Carpenters (1979) 25 Cal.3d 317, 330-331 and fn. 10, 158 Cal.Rptr. 370, 599 P.2d 676, cert. den. (1980) 447 U.S. 935, 100 S.Ct. 3038, 65 L.Ed.2d 1130.)
While there is some logic to this point, it is not enough to override what we perceive to be the intent of the Legislature. A rule of statutory construction should be used to ascertain legislative intent, not to defeat it. (See People v. Silver (1940) 16 Cal.2d 714, 721, 108 P.2d 4.) Furthermore, the distinction between equitable and legal remedies presents only one possible way of viewing the Act. It is also possible to view the list of enumerated remedies as "make-whole" remedies, or remedies that would put the complainant in the same position he or she would have been in if the discrimination had not occurred. If this distinction is used, compensatory damages would be of the same class as those enumerated.
Another argument against allowing an agency this power is that the informal administrative procedures cannot ensure that these damages will be given fairly. (See, e.g., Pennsylvania Human Relations Com'n v. Zamantakis, supra, 387 A.2d 70, 72.) California's administrative scheme, however, is set up in a way that dissolves many of the procedural concerns. The investigative and prosecutorial functions are separate from the rule-making and quasi-judicial functions. (See Gelb & Frankfurt, California's Fair Employment and Housing Act: A Viable State Remedy for Employment Discrimination (1983) 34 Hastings L.J. 1055.) One body is not the investigators, prosecutors, judge and jury; the Commission is a neutral body, disinterested in the controversy between employer and employee. (See State Personnel Bd. v. Fair Employment & Housing Com., supra, 39 Cal.3d 422, 434, 217 Cal.Rptr. 16, 703 P.2d 354.) Furthermore, the Commission's hearings are always full evidentiary proceedings governed by the California rules of evidence and conducted in accordance with the Administrative Procedures Act. ( §§ 11500 et seq., 12972.) A record is preserved and the Commission is required to issue a decision setting forth findings of fact and conclusions of law. ( §§ 11517, subd. (b), 11518.) Cross-examination is permitted. Finally, the Commission's decision can always be reviewed by a court via a petition for administrative writ of mandamus. California's protections adequately forestall the procedural dangers inherent in granting an administrative agency the power to award damages.
The most commonly heard argument against allowing the agency this power is that compensatory damages are traditionally a matter for courts and therefore the Legislature must explicitly authorize the use of these damages before they can be used by a commission. (See McDaniel v. Cory (Alaska 1981) 631 P.2d 82, 88; Pennsylvania [226 Cal.Rptr. 803] Human Relations Com'n v. Zamantakis, supra, 387 A.2d 70, 72; Ohio Civil Rights Com. v. Lysyj (1974) 38 Ohio St.2d 217, 313 N.E.2d 3, 5, cert. den. (1975) 419 U.S. 1108, 95 S.Ct. 780, 42 L.Ed.2d 804.) We disagree with this contention because we believe the statutory authority to award these damages is inherent in the Act. The Commission shall take such action "as, in the judgment of the commission, will effectuate the purposes" of the Act ( § 12970) and "the provisions of this part shall be construed liberally for the accomplishment of the purpose thereof." ( § 12993.) The Legislature explicitly delegated the power to the Commission to determine what remedies would effectuate the purposes of the Act; the Commission has acted pursuant to this delegation of power. Tradition is a weak argument where the purpose of the Act would be accomplished, the procedure followed protects against abuses, and the problem being combated demands remedies. Moreover, at least in California, the tradition has already been eroded; this Commission already has the authority to award these damages in housing cases. ( § 12987, subd. (2); see Hess v. Fair Employment & Housing Com., supra, 138 Cal.App.3d 232, 236-237, 187 Cal.Rptr. 712.)
Based on the language of the Fair Employment and Housing Act and on our consideration of the various arguments, we rule that the Commission has authority to award compensatory damages. We reverse the portion of the superior court's judgment that held that the Commission lacked authority to award compensatory damages, and we reinstate the Commission's award.
KLINE, P.J., concurs.
ROUSE, Associate Justice, dissenting.
I respectfully dissent.
My concern with the majority's opinion is its unwarranted act of judicial legislation in authorizing an administrative agency, in this case the California Fair Employment and Housing Commission (Commission), to award compensatory damages in an employment discrimination case, a remedy which is neither specifically authorized by statute nor, in my opinion, intended by the Legislature.
In Commodore Home Systems, Inc. v. Superior Court (1982) 32 Cal.3d 211, 185 Cal.Rptr. 270, 649 P.2d 912 a case involving employment discrimination, the California Supreme Court held that an award of punitive damages could be sought in a civil action brought in a court of law. However, the court left open the question of whether the Commission was authorized to make such an award as an administrative remedy. 1 GOVERNMENT CODE SECTION 129702, subdivision (a) (hereafter section 12970(a)), sets out a defined number of equitable remedies, but then goes on to give the Commission the power to take action that in their judgment "will effectuate the purposes" of the California Fair Employment and Housing Act (FEHA). ( § 12900 et seq.)
In an attempt to comprehend the seeming paradox of the section's broad general language and its narrow equitable remedies, we customarily examine the legislative intent behind the statute. However, in this instance, there is scant legislative history to help unravel that intent. Thus, confined to "the four corners of the statute" (Commodore Home Systems, Inc. v. Superior Court, supra, 32 Cal.3d 211, 221, [226 Cal.Rptr. 804] 185 Cal.Rptr. 270, 649 P.2d 912 (conc. opn. of Mosk, J.)), one must turn to the doctrines of statutory construction to aid in its interpretation.
A general rule of statutory construction holds that when legislation has been judicially construed and a subsequent statute on the same or analogous subject is framed in identical language, it will ordinarily be presumed that the Legislature intended that the language as used in the later enactment would be given a like interpretation. This rule is applicable to state statutes which are patterned after federal statutes. (Belridge Farms v. Agricultural Labor Relations Bd. (1978) 21 Cal.3d 551, 557, 147 Cal.Rptr. 165, 580 P.2d 665.) In this regard, appellant's brief and California case law have each pointed out a similarity between section 12970(a), and federal legislation. (See Commodore Home Systems, Inc. v. Superior Court, supra, 32 Cal.3d 211, 223-224, 185 Cal.Rptr. 270, 649 P.2d 912 (dis. opn. of Richardson, J.).) The phrasing of section 10(c) of the National Labor Relations Act (NLRA) (29 U.S.C. §§ 151 et seq., 160(c)), directing the National Labor Relations Board (NLRB), upon a finding of an unfair labor practice, to "take such affirmative action including reinstatement of employees with or without back pay, as will effectuate the policies of this subchapter," is very similar to the language of section 12970(a), which allows the Commission "to take such action, including, but not limited to, reinstatement ..., with or without back pay, ... as, in the judgment of the commission, will effectuate the purposes of this part...." Federal courts have continually interpreted section 10(c) of the NLRA as not allowing monetary remedies other than back pay. (Edison Co. v. Labor Board (1938) 305 U.S. 197, 235-236, 59 S.Ct. 206, 219, 83 L.Ed. 126.)
Also, the remedial section of title VII of the federal Civil Rights Act of 1964 (42 U.S.C.A. § 2000e-5(g)) is almost identical to the statute here in question. 3 It is universally acknowledged that section 2000e-5(g) is closely modeled on the provisions of the NLRA which empower the NLRB to end unfair labor practices. (Albemarle Paper Co. v. Moody (1975) 422 U.S. 405, 419 & fn. 11, 95 S.Ct. 2362, 2372 & fn. 11, 45 L.Ed.2d 280.) The close connection between section 10(c) of the NLRA and section 2000e-5(g) of title VII would make the judicial construction of title VII relevant since there exists a strong public policy in favor of interpreting similar statutes dealing with the same subject matter in a similar fashion. (Meanley v. McColgan (1942) 49 Cal.App.2d 203, 209, 121 P.2d 45.) Title VII has continually been interpreted as barring monetary remedies other than back pay. (Richerson v. Jones (1977) 551 F.2d 918, 926-927; Equal Employment Op. Com'n v. Detroit Edison Co. (1975) 515 F.2d 301, 308-309.) The similarity of the federal and state statutory language strongly suggests that the FEHA should receive a parallel construction. (Commodore Home Systems, Inc. v. Superior Court, supra, 32 Cal.3d 211, 224, 185 Cal.Rptr. 270, 649 P.2d 912 (dis. opn. of Richardson, J.).)
Even if the use of federal judicial interpretation of section 10(c) of the NLRA and title VII as a means of statutorily construing section 12970(a) could be called into question, it still serves as persuasive authority. Although the intent of the NLRA and the FEHA may slightly differ, the remedial portions of section 10(c) of the NLRA and section 12970(a) are each designed [226 Cal.Rptr. 805] to protect an employee against discriminatory employment practices.
Another doctrine of statutory construction, ejusdem generis, holds that the court can interpret the legislators' intent by limiting the statute's broad language to its specifically enumerated remedies. " '[T]he doctrine of ejusdem generis ... states that where general words follow the enumeration of particular classes of persons or things, the general words will be construed as applicable only to persons or things of the same general nature or class as those enumerated. The rule is based on the obvious reason that if the Legislature had intended the general words to be used in their unrestricted sense, it would not have mentioned the particular things or classes of things which would in that event become mere surplusage.' " (Sears, Roebuck & Co. v. San Diego County Dist. Council of Carpenters (1979) 25 Cal.3d 317, 331 & fn. 10, 158 Cal.Rptr. 370, 599 P.2d 676.) Applying that doctrine, section 12970(a) is limited to relief of the same nature as that specifically enumerated in the statute. While the Commission's authority under that section may not be limited to the reinstatement or hiring of employees with or without back pay, it should be limited to relief of the same general kind, i.e., equitable relief in the form of restitution.
The majority concludes that "this Commission already has the authority to award these [compensatory] damages in housing cases," citing this division's opinion in Hess v. Fair Employment & Housing Com. (1982) 138 Cal.App.3d 232, 236-237, 187 Cal.Rptr. 712. (Majority opn. at p. 803.) However, the section there involved ( § 12987, subd. (2)) authorizes the Commission to award the payment of actual and punitive damages in a maximum amount of $1,000 to each aggrieved person injured as a result of housing discrimination. (Hess v. Fair Employment & Housing Com., supra, at p. 236, 187 Cal.Rptr. 712.) This specific provision for a limited award of damages emphasizes the intentional omission of the compensatory damage remedy in section 12970(a). Here again there is evidence that when the Legislature wishes to provide a remedy for the recovery of damages, it tailors a specific provision in the statute instead of resorting to vague and general language.
In seeking to identify legislative intent, I find it significant that, under this act, the Legislature has authorized the California Department of Fair Employment and Housing (Department) to issue a "right to sue" letter, which allows the person discriminated against to commence a civil action in the superior court within a time period therein prescribed. ( § 12965, subd. (b).) 4 If the Legislature intended to authorize the Commission to award compensatory damages, [226 Cal.Rptr. 806] why was this section necessary? What standards or guidelines govern the Commission's decision to award compensatory damages instead of the Department issuing a right to sue letter?
I am concerned, also, with a growing trend to relegate, to administrative agencies, problems which historically have found resolution in a judicial forum. In this case, for example, to require the aggrieved person to seek an award of compensatory damages from a commission would deprive such person, as well as the one complained against, of a constitutional right to a trial by jury. 5 "Damages are a legal, not an equitable remedy, and the Seventh Amendment [to the United States Constitution] requires a jury trial in a statutory action 'if the statute creates legal rights and remedies, enforceable in an action for damages in the ordinary courts of law.' " (Equal Employment Op. Com'n v. Detroit Edison Co., supra, 515 F.2d 301, 308, citing Curtis v. Loether (1974) 415 U.S. 189, 194, 94 S.Ct. 1005, 1008, 39 L.Ed.2d 260.) 6 Perhaps, in the face of an ever increasing volume of litigation, delegation of such matters to an administrative body is an efficient and a reasonable solution--but not in the absence of specific statutory authorization!
The Commission argues that, by its own interpretation of section 12970(a), it has the power to award compensatory damages. While it is true that the Commission has the duty to interpret FEHA provisions through regulations and precedential opinions, and that its interpretation is entitled to great respect (Judson Steel Corp. v. Workers' Comp. Appeals Bd. (1978) 22 Cal.3d 658, 668, 150 Cal.Rptr. 250, 586 P.2d 564), yet it cannot, by its own regulations, create a remedy which the Legislature has withheld. The exercise of administrative power by regulation can rise no higher than its legislative source. While construction of a statute by the enforcing agency deserves weight, it cannot, of course, prevail over persuasive indications of contrary legislative intent. (Pacific Legal Foundation v. Unemployment Ins. Appeals Bd. (1981) 29 Cal.3d 101, 117, 172 Cal.Rptr. 194, 624 P.2d 244.)
In sum, I believe that the Commission's authority does not extend to its awarding compensatory damages but is, instead, limited to forms of equitable relief. No one questions the propriety of, or need for, an award of compensatory and even punitive damages in a proper case involving employment discrimination. However, absent legislative authority to the contrary, set forth in specific language, it is my opinion that this function should be performed by a civil court of law and not by an administrative agency. If the Legislature wants to authorize the Commission to award compensatory and punitive damages in employment discrimination cases, let it say so. Judicial legislation in this situation is inappropriate.
I would affirm the judgment.
As noted in footnote 3 of the majority opinion, this question is now before the California Supreme Court in the case of Dyna-Med, Inc. v. Fair Employment & Housing Com. (L.A. 32145, review granted January 23, 1986).
The remedy provisions in section 12970(a) read virtually the same: "If the commission finds that a respondent has engaged in any unlawful practice under this part, it shall ... order ... respondent to cease and desist from such unlawful practice and to take such action, including, but not limited to, ... reinstatement ..., with or without back pay, ... as, in the judgment of the commission, will effectuate the purposes of this part...."