COMMODORE HOME SYSTEMS, INC., Petitioner, v. THE SUPERIOR COURT OF SAN BERNARDINO COUNTY, Respondent; JOHNNIE BROWN et al., Real Parties in Interest.
L.A. No. 31512
Supreme Court of California
Aug. 30, 1982.
32 Cal. 3d 211
NEWMAN, J.
Munger, Tolles & Rickershauser and Ralph F. Hirschmann for Petitioner.
Gibson, Dunn & Crutcher, William F. Spalding, Pamela L. Hemminger, Kenneth C. McGuiness, Robert E. Williams, Douglas S. McDowell, Barbara L. Neilson and McGuiness & Williams as Amici Curiae on behalf of Petitioner.
No appearance for Respondent.
Hanson & Adams and Michael D. Hanson for Real Parties in Interest.
Joseph Posner, Marjorie Gelb, David Benjamin Oppenheimer, David A. Garcia, Theresa L. Thomas, Joan M. Graff, Linda J. Krieger, Rebecca I. McKee, Judith E. Kurtz and Nancy L. Davis as Amici Curiae on behalf of Real Parties in Interest.
OPINION
NEWMAN, J.— Petitioner Commodore Home Systems, Inc. (Commodore) seeks mandate after the San Bernardino Superior Court denied its
The California Fair Employment Practices Act (FEPA) was enacted in 1959 (former Lab. Code, § 1410 et seq.; see Stats. 1959, ch. 121, § 1, p. 2000 et seq.). In 1980 it was recodified as part of the FEHA. (Stats. 1980, ch. 992, § 4, p. 3140 et seq.) The law establishes that freedom from job discrimination on specified grounds, including race, is a civil right. (
The statute creates a Department of Fair Employment and Housing (Department) (
The Commission determines whether an accused employer, union, or employment agency has violated the act. If it finds a violation it must “issue ... an order requiring such [violator] 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 purpose of this part ....” (
If no accusation is issued within 150 days after the filing of the complaint and the matter is not otherwise resolved, the Department must
FACTS
The complaint of Johnnie Brown and Bennie Butler (both of whom are black) alleges as follows: Brown was hired by Commodore in June 1979 as a quality-control inspector. He was fired in October 1979, ostensibly because of a work-force reduction. He filed a discrimination complaint with the Department (then the Fair Employment Practices Commission [FEPC]) in November 1979. In February 1980 he was rehired and promoted. He alleges that the rehiring and promotion were solely to appease him and then demonstrate his incompetence so that he could be fired again. Commodore did fire him again in June 1980 for reasons “falsely and fraudulently contrived,” he alleges.
Butler was hired in February 1979 as a quality-assurance manager. Like Brown, in October 1979 he was fired as part of the work-force reduction, and he too filed an FEPC complaint.
Both men received right-to-sue letters from the Department in April 1980. They sued and asserted that each was discharged solely because of race, under Commodore‘s policy of denying supervisory and management positions to blacks. They further alleged that Commodore employs no blacks as managers or supervisors, fires all blacks with aptitude for advancement to those positions, acted in “total disregard of plaintiff‘s rights and feelings,” with “explicit intent” to jeopardize them, and proceeded “in an oppressive and malicious manner.” The prayer seeks general and compensatory damages, as well as punitive damages of $500,000 for Butler and $750,000 for Brown.
Commodore moved to strike the punitive-damage words, asserting that monetary relief beyond back pay is not available under the FEHA. The court denied the motion. This petition followed.
THE LAW
Commodore and supporting amici3 note that subdivision (a) of section 12970 does not mention punitive damages; hence, they argue,
When a statute recognizes a cause of action for violation of a right, all forms of relief granted to civil litigants generally, including appropriate punitive damages, are available unless a contrary legislative intent appears. (Orloff v. Los Angeles Turf Club (1947) 30 Cal.2d 110, 113 [180 Cal.Rptr. 321, 171 A.L.R. 913]; Greenberg v. Western Turf Assn. (1904) 140 Cal. 357, 363-364 [73 P. 1050].) Here we perceive no such intent.
Section 12965, subdivision (b), declaring the right to sue when the Department fails to act, was added in 1977. (Stats. 1977, ch. 1188, § 34, p. 3911; former Lab. Code, § 1422.2, subd. (b).)4 Except by providing for attorney fees and costs, the subdivision does not address the subject of judicial remedies. Moreover, neither the 1977 amendment nor the 1980 recodification altered the only FEHA language that deals with remedies for employment discrimination, and that language concerns only the remedial powers of the Commission. (Cf. former Lab. Code, § 1426 with
Commodore suggests that, by providing for a civil action “under this part” (
The employers note that the statute allows recovery of “reasonable attorney fees and costs ...” which phrase, they assert, shows an intent to exclude other kinds of relief not available in Commission proceedings. Again we see no merit in the contention. The fee-cost provision was added in 1978 (Stats. 1978, ch. 1254, § 10, p. 4073) as part of more extensive amendments. The Legislative Counsel‘s Digest states only that “[a]ttorney fees would be allowed to the prevailing party.” (Dig. of Assem. Bill No. 1915, 4 Stats. 1978 (Reg. Sess.) Summary Dig., p. 350.) The sole aim appears to have been to contravene the general rule in California that, absent contrary agreement, litigants are not entitled to fees. (
Commodore invokes the maxim that remedies in statutes creating new causes of action are deemed exclusive. (See Orloff, supra, 30 Cal.2d at p. 113; Gold v. Los Angeles Democratic League (1975) 49 Cal.App.3d 365, 373 [122 Cal.Rptr. 732].) Any such rule is inapposite here because the FEHA identifies none of the remedies available in court pursuant to its provisions.
The employers stress that federal statutes with similar language have been held not to authorize awards of either general compensatory or punitive damages. They rely in particular on interpretations of section 10(c) of the National Labor Relations Act (NLRA) (
Contrastingly, title VII provides for judicial handling of federal discrimination claims in civil actions by the Equal Employment Opportunity Commission (EEOC) or, when it declines to sue, by persons aggrieved. (
The FEHA, on the other hand, provides separate routes to resolution of claims; first, a complaint to the Department; second, if that agency fails to act, a private court action. The statute discusses remedies only in the first context; here we are concerned with those available in the second. Federal precedents do not address that problem.6
There is another distinction, too, between the contexts in which federal and state damage questions must be decided. Federal law includes no provision comparable to
One basis for federal holdings under title VII is a fear that the availability of punitive damages might hamper the EEOC‘s efforts to resolve discrimination disputes by “conference, conciliation, and persuasion.” (
We are not persuaded. In the first place there is no right to sue, even after conciliation breaks down, unless the Department fails to file an accusation before the Commission. To that extent the availability of court remedies remains within the Department‘s control. More importantly, the compliance structure of the FEHA encourages cooperation in the administrative process. While that process continues the Department acts on the victim‘s behalf and absorbs costs of pursuing his claim. Court action inevitably is speculative, and the FEHA makes civil suit the claimant‘s sole responsibility. That helps deter strategies of “holding out” for court damages in inappropriate cases. Further, the possibility that an action might lead to punitive damages may enhance the willingness of persons charged with violations to offer fair settlements during the conciliation process.8
The employers note the history of the 1977 amendment that shows, they contend, an intent to limit remedies in a civil action to those obtainable from the Commission.9 The private-right-of-action clause was part of Assembly Bill No. 738 (1977-1978 Reg. Sess.) (Assem. Bill No. 738). The bill included changes designed to separate prosecutorial from adjudicative functions, increase the Department‘s power,10 and reduce the backlog of unprocessed complaints for which the FEPC had come
The Department of Finance Enrolled Bill Report summarized the civil action provision in nearly identical terms. It deemed minimal the fiscal effect of a right to sue, since “FEPC believes that few complainants would use the option of bringing civil action in a superior court. Such action would be time-consuming and costly if the complainant loses....”
In a letter to the Governor of September 23, 1977, Assemblyman Lockyer—the bill‘s author—explained that “should the Division fail to resolve a complaint within the specified time, the complainant would have the right of private civil action.” On September 21, 1977, Alice Lytle, chief of the Division of Fair Employment Practices, also wrote the Governor in support of the bill, describing the right of action as “limited.”
An undated memo in Assemblyman Lockyer‘s files, furnished by the Legislative Intent Service, states that under Assembly Bill No. 738 “[i]ndividuals have a right to very limited private action in State courts if the Division fails to issue an accusation....” Earlier the Assembly Committee on Labor, Employment, and Consumer Affairs had described nearly identical court action language in Assembly Bill No. 1075, a competing measure, as providing a suit “[s]imilar to the private right of action provision contained in federal law ....”
The declarations in the Lockyer letter and memo, the Lytle letter, and the Department of Finance Enrolled Bill Report, that the right of action is “limited,” are not inconsistent with the availability of punitive damages. The right surely is “limited,” in the sense that extensive administrative procedures are a precondition to its accrual.
Nor are we convinced by language in the committee reports about the similarity between federal and state causes of action. Again, those references may address the parallel requirement of first resort to a screening agency. They are too general and cursory to dispel the California presumption that punitive damages are available in noncontractual court actions.
Alcorn v. Anbro Engineering, Inc. (1970) 2 Cal.3d 493 [86 Cal.Rptr. 88, 468 P.2d 216] recognized a right independent of the FEPA to seek emotional-distress and punitive damages when overt racial malice is the motive for a discharge. (Pp. 497-498, and fn. 2, 500, fn. 7.) Since the opportunity for employment free of discrimination is a civil right, said Alcorn (see former Lab. Code, § 1412; now
The policy that promotes the right to seek and hold employment free of prejudice is fundamental. Job discrimination “foments domestic strife and unrest, deprives the state of the fullest utilization of its capacities for development and advance, and substantially and adversely affects the interest of employees, employers, and the public in general.” (
Even if the Legislature did limit the remedies available in the administrative setting (a question we need not decide), it has not spoken similarly about the judicial forum. Distinctions between the two kinds of proceedings suggest that restrictions on the agency do not by implication extend to a court.
As we have stressed, the FEHA leaves an aggrieved party on his own if the Department declines to pursue an administrative claim in his behalf. To limit the damages available in a lawsuit might substantially
Absent a convincing statement of contrary legislative intent, we rule that, in a civil action under the FEHA, all relief generally available in noncontractual actions, including punitive damages, may be obtained. We affirm the order denying Commodore‘s motion to strike the prayers for punitive damages from real parties’ complaint.
The peremptory writ of mandate sought by Commodore is denied; the alternative writ, discharged.
Bird, C. J., Broussard, J., and Reynoso, J., concurred.
MOSK, J.—I concur in the order and in the opinion with one exception: I do not deem it appropriate to refer, for any purpose, to legislators’ letters expressing their understanding of legislative intent.
It is unfortunate that in California we do not have the equivalent of the Congressional Record. Thus, we lack the ability to glean from verbatim floor debates a common denominator or consensus reflecting views on a measure under consideration. The journal required of each house by the Constitution (art. IV, § 7, subd. (b)) does not serve this purpose. On occasion we do have some minimal history in published committee reports, legislative counsel analyses, and in the case of initiative measures the publically distributed explanation of proponents. But other than those occasionally helpful indicia of legislative intent we are necessarily confined to the four corners of the statute.
One legislator may express his opinion on the purpose and limitations of a pending proposal. But he—even if the author of the measure—represents only 1/120th of the whole Legislature. He cannot possibly know the subjective intent of other members of the two houses who supported the bill. For that reason I am convinced no court should lend any credence to a legislator‘s letter, expansive or limited, regarding a legislative enactment.
My views on this subject are consistent with the court‘s unanimous opinion in In re Marriage of Bouquet (1976) 16 Cal.3d 583 [128 Cal.Rptr. 427, 546 P.2d 1371], in which it was held (at pp. 589-590) that “In construing a statute we do not consider the motives or understandings of individual legislators who cast their votes in favor of it.
The majority in the instant case are ill-served by any reference to one legislator‘s opinion.
Reynoso, J., concurred.
RICHARDSON, J.—I respectfully dissent. In my view, the Legislature did not intend to permit the recovery of punitive damages in job discrimination actions brought under the Fair Employment and Housing Act (FEHA).
A civil action may be brought after the Fair Employment and Housing Commission (commission) either fails, or expressly declines, to issue an accusation for 150 days after the filing of a complaint. (
The majority does not reach the question whether the commission itself is empowered to award punitive damages in employment discrimination cases but, as I have explained, a resolution of that issue is critical to a correct determination of the present case. In my view, both the statutory language and relevant legislative history, which I briefly explore, conclusively establish that the commission has no such authority.
FEHA recites that “It is the purpose of this part to provide effective remedies which will eliminate ... discriminatory practices.” (
The foregoing limited remedy language of subdivision (a) of section 12970 recodifies and substantially reenacts that of former Labor Code section 1426, which was adopted in 1959 as part of the Fair Employment Practices Act (FEPA). Also, the phrasing bears a close resemblance to section 10(c) of the National Labor Relations Act (NLRA) (
Referring to the NLRB, Edison held that “the power to command affirmative action is remedial not punitive“; it is intended to allow restraint of violators and “as a means of removing or avoiding the consequences of a violation” where that serves the law‘s aims. The statute “does not go so far,” said the Supreme Court, as to allow a punitive order “even though the Board be of the opinion that the policies of the Act might be effectuated by such an order.” (305 U.S. at pp. 235-236 [83 L.Ed.2d at p. 143].)
Real parties purport to find a material distinction between the state and federal laws in the deletion from FEPA in 1969 of the term “affirmative” preceding the word “action.” As in the NLRA, the original FEPA used the phrase “affirmative action.” (Stats. 1969, ch. 526, § 1, p. 1142.) Real parties interpret this deletion as reflecting a legislative intent to enlarge the commission‘s powers by removing any remedial limitation implied by the word “affirmative.”
However, the available legislative history does not support that contention. Assembly Bill No. 407 (Greene), 1969 Regular Session, originally proposed to substitute the word “positive” for “affirmative“; subsequent versions omitted both terms. The Enrolled Bill Report of the Department of Industrial Relations and the Enrolled Bill Memo of the Governor‘s Legislative Secretary both state that the aim of the proposed change was to avoid confusion with a 1967 amendment authorizing the FEPC to engage in “affirmative actions with employers, employment agencies, and labor organizations ....” (See former Lab. Code, § 1431; now
Decisions under title VII have stressed that its remedy language was “expressly modeled” on section 10(c) of the NLRA. (Richerson v. Jones (3d Cir. 1977) 551 F.2d 918, 927; cf. Albemarle Paper Co. v. Moody (1975) 422 U.S. 405, 419, and fn. 11 [45 L.Ed.2d 280, 297, 95 S.Ct. 2362].) Some courts have invoked the doctrine of ejusdem generis in concluding that the type of “affirmative action” which is illustrated by a make-whole award of back pay does not include punitive assessments. (Richerson, supra, at p. 927; Equal Employment Op. Com‘n v. Detroit Edison Co. (6th Cir. 1975) 515 F.2d 301, 309-310.) Several other decisions have focused on the phrase “equitable relief” in section 706(g), noting that punitive damages traditionally are not available in equity. (Shah v. Mt. Zion Hospital & Medical Ctr. (9th Cir. 1981) 642 F.2d 268, 272; Miller v. Texas State Bd. of Barber Examiners (5th Cir. 1980) 615 F.2d 650, 654; Richerson, supra, at pp. 926-927; Detroit Edison Co., supra, at pp. 309-310.)
As previously noted, I find it persuasive that the housing discrimination provisions of FEHA include “the payment of punitive damages not to exceed one thousand dollars” (adjusted, since 1981, for cost of living) as one of the nonexhaustive list of “actions” which the commission may, “in [its] judgment,” order a violator to take to “effectuate the purpose of this part.” (
California‘s original housing discrimination law, the Hawkins Act, was adopted in 1959, the same year as FEPA. (Stats. 1959, ch. 1681, § 1, p. 4074 et seq.) The Hawkins Act covered only “publicly assisted housing” and allowed aggrieved persons to sue for “restraint of [viola-
In 1963 the Hawkins Act was supplanted by the Rumford Act (Stats. 1963, ch. 1853, § 2, p. 3823 et seq.). The 1963 act expanded the categories of housing in which discrimination was prohibited. It empowered the FEPC to order a violator to (a) cease and desist and (b) take any “one of the following affirmative actions” as, in its judgment, would serve the law‘s purpose: “(1) [t]he sale or rental of the housing accommodation [,] (2) [t]he sale or rental of a like accommodation, if one is available, or the next vacancy in a like accommodation[, or] (3) [t]he payment of damages [not exceeding $500] if the commission determines that neither of the remedies under (1) or (2) is available.” (Id., at p. 3828 [former Health & Saf. Code, § 35738], italics added.) A 1975 amendment increased the maximum damage award to $1,000. (Stats. 1975, ch. 280, § 1, p. 701.)
The final chapter was added in 1977 when the act again was amended to broaden the scope of illegal discriminatory acts. The commission was authorized to order “such actions” by a violator as it deemed appropriate to serve the law, including, but not limited to, the sale or rental of the same or similar housing, the provision of nondiscriminatory purchase, rental, and financing terms, and “[t]he payment of actual and punitive damages” not exceeding $1,000. (Italics added, Stats. 1977, ch. 1187, § 10, p. 3893; ch. 1188, § 13.1, pp. 3905-3906.) With irrelevant changes the Legislature carried this scheme forward when it combined the employment and housing laws in FEHA.
The foregoing history strongly suggests that the original provision of “damages” in the housing law, but not the employment statute, was purposeful. The Legislature may well have concluded that damages were a necessary alternative to other relief in housing cases, because the passage of time often would make it impossible or impracticable to force a violator to offer the same or similar accommodations. However, direct remedies for employment discrimination, such as reinstatement and back pay, are less likely to become unavailable after the fact, making an alternative damage remedy less essential.
Later versions of the housing law abandoned the “last-resort” theory of damages and provided that damages could be both cumulative to
The remedy language of the employment and housing sections seems consciously parallel in other important respects. Both provide for cease and desist orders and declare that violators may be directed to “take such action[s],” as, in the commission‘s judgment, will effectuate the statutory purpose, “including, but not limited to,” those specified. (Cf.
A number of our sister state courts have concluded that statutes similar to FEHA do not authorize the nonjudicial award of compensatory or punitive damages. (E.g., Ohio Civil Rights Commission v. Lysyj (1974) 38 Ohio St.2d 217 [313 N.E.2d 3, 6-7, 70 A.L.R.3d 1135]; Gutwein v. Easton Publishing Company (1974) 272 Md. 563 [325 A.2d 740, 740, 743-747], cert. den. (1975) 420 U.S. 991 [43 L.Ed.2d 673, 95 S.Ct. 1427]; Mendota Apts. v. District of Columbia Com‘n on H.R. (D.C.App. 1974) 315 A.2d 832, 834-836; Zamantakis v. Commonwealth Human Rel. Com‘n (1973) 10 Pa. Commw. 107 [308 A.2d 612, 616].) Most of these cases stress the parallel with the federal statutes.
I fully recognize that the commission‘s own regulations (see
Kaus, J., concurred.