*1 The decision Appeals of the Court of
rеversed and the case remanded to the court judg- directions enter a
ment in conformity opinion. with this
All concur.
KENTUCKY COMMISSION ON HUMAN Cooper, Movants,
RIGHTS and Donna FRASER d/b/a
Alasdair Bonanza Sirloin Pit, Respondent.
Steak
Supreme of Kentucky.
Dec. 1981. *2 for humiliation and
ages Cooper to Mrs. 344.- pursuant KRS 230(3)(h). by the
Respondent appealed, provided Court, statute, which to the Madison Circuit decision. The reversed the Commission’s affirmed, adopted the Appeals entirety. in its opinion circuit court granted discretionary review. question part The statute Act, Chapter Rights Civil KRS procedure a detailed provides which com- of discrimination consideration 344.200, seq. et Written plaints. KRS discrimination are in- complаints alleged vestigated by the staff of the Commission which, if Rights, “probable on Human after found, sought cause” is resolution is If no through conference and conciliation. reached, the con- agreement Commission 344.- hearing pursuant ducts a full to KRS If the finds .220 and .230. Commission occurred, may impose that a violation has OPINION OF THE COURT sanctions, any including of several cease This case concerns the constitutionality of orders, employ- and desist reinstatement of 344.230(3)(h), KRS which authorizes ees, employees training pro- admission of Kentucky Commission Rights on Human individual, grams, property rental of to an award compensatory damages' for embar- payment damages to an individual. rassment and humiliation caused unlaw- provision It is this last for the award ful discrimination. challenged which is here. The movant, Cooper, party aggrieved provides any was hired a food service respondent judi- worker in the action seek by the Commission’s Fraser’s restaurant in January of 1976. cial in circuit court where awards of review Shortly thereafter she learned that she was or set aside. damages may be modified pregnant. In February year of that she Court of Further review is available was fired. In June of 1976 she filed a Appeals. 344.240. KRS complaint with the Commission (1) appeal: issues raised on this Four Rights Human alleging that she was 344.230(3)(h) allowing the Whether KRS terminated pregnancy, because of her dam- compensatory Commission to award sex, therefore her in violation of KRS 344.- ages and humiliation in for embarrassment hearing 040. A was conducted in Novem- unconstitutionally discrimination eases de- ber of at which the evidence estab- (2) by jury; nies the to trial Whether lished that Mrs. was terminated be- usurpa- is an unconstitutional the statute cause of her pregnancy. The evidence also (3) judicial power; Whether tion of Fraser, indicated respondent, of- improperly imposed “pre- Appeals Court of fered leaves of employees absence to other ponderance of the evidence” as the stan- disabilities, temporary rather than ter- find- dard for review of the Commission’s minating them. and, in this (4) the evidence ings, Whether Januаry of 1977 the Commission found case is sufficient Commis- them in findings. that the had violated 344.- We will discuss sion’s $1,000 040 and pay ordered him to in dam- that order.
I
II.
TRIAL BY JURY
POWER
USURPATION OF JUDICIAL
Appeals
The Court of
held
the stat-
Appeals
Court of
found that
ute violates the seventh amendment to the
the Commission’s assessment of
United States Constitution
7 of
and Section
for humiliation and embarrassment was un
Constitution,
the Kentucky
both
*3
for
measurable
lack of a
stan
provide
right
by jury
that the
of trial
shall
guide
dard
which to
the Commission’s
preserved
inviolate.
The
deliberations.
same issue is raised in
The United
Suрreme
companion
Kentucky
the
case of
Commis
interpreted
has
right
the
jury
to trial
Barbour,
Human Rights
Clay
sion on
v.
right
mean the
which existed in suits under
to
860
also decided
(Ky.1981),
625 S.W.2d
the
1791,
common law
when the amend
argues
grant
Movant
the
day.
of au
ment
adopted.
Neither the seventh
thority
the Commission
assess such
amendment nor Section 7 of
Kentucky
the
delega
is not an unconstitutional
jury
right.
Constitution creates a
trial
usurpation
judicial powers.
tion or
Both,
terms,
by their
simply preserve that
agree.
right
already
as it
existed
the com
mon
Roоfing
law. Atlas
v.
Inc. Occu
general
delegation
powers
test for
pational
Etc.,
442,
Safety,
430
97
U.S.
S.Ct.
agency Kentucky
to an administrative
is
1261,51
(1977);
L.Ed.2d 464
v.
NLRB Jones
safeguards, procedural and
that of
other-
1,
& Laughlin
Corp.,
Steel
301
57
U.S.
S.Ct. wise,
prevent
abuse
discretion
615,
(1937).
81 L.Ed.
right
893
the
Because
agency.
United
by the
Butler v.
Cerebral
to be free from
discrimination based
Palsy
Kentucky,
of Northern
352 S.W.2d
race, color, religion,
sex,
origin,
national
case,
(1961). In
we
present
203
the
find
and age is a creature of statute and not a
safeguards (1)
presence
sufficient
tort, it
common-law
does not fall within the
regulations, 104
1:010 et
seq.,
KAR
scope
right
preserved
trial
jury
(2)
provision
due-process
for a full
hear-
by the seventh
amendment and
Section 7 ing,
seq.
KRS 344.200 et
and 104 KAR
Atlas,
the Kentucky Constitution.
1:020,(3)
agency’s experience making
NLRB v.
and Laughlin, supra.
Jones
determinations,
(4)
provision
similar
right
prescribe
statute which creates a
can
344.240,
review,
judicial
uphold
for
KRS
a proceeding
adjudication
right
of that
the statute.
in an
jury
administrative forum
without
holding
In so
we are
unmindful of the
not
189,
Loether,
trial.
Curtis
94
U.S.
judicial
pri-
as a
tensiоn between
review
1005,
S.Ct.
(1974).
Lumber
Ky.
Co. v.
render the statute unconstitutional as a
S.W. 1080
For these reasons we
judicial
hold that
Administra
344.230(3)(h)
usurpation
power.
does not uncon
deprive
stitutionally
involved in the
agencies
frequently
Fraser
tive
of his right
jury
to a
adjudication
(Worker’s Compen-
trial.
of disputes
sation,
ing
upheld,
why
has
there
reason
Unemployment Compensation, repa-
been
is no
rations proceedings before the Interstate
speci-
be held to a
the Commission should
Commission,
See,
like).
Commerce
deciding
jury
fied dollar limit while
Atlas, supra,
Laughlin,
NLRB v. Jones &
similarly
same
not be
limited.
case would
supra. Where
adequately
possibility
arbitrary
There is a
decision-
conduct,
prohibited
defines the
administra-
making by the
but the same
tive bodies may ascertain the facts and
trial,
judicial
possibility
in a
exists
administer
the law. Kentucky Alcoholic
aside an
modify
review is available to
or set
Beverage
Jacobs,
Control Bd. v.
269 S.W.2d
excessive award.
(Ky.1954).
Such acts of administrative
are, by
Humiliation and embarrassment
bodies are not
usurpa-
an unconstitutional
nature,
yet ju-
easily quantified,
their
judicial
tion of
judicial
review
historically
ries have
been entrusted
available,
Keller v.
Alcoholic
assessing similarly intangible elements of
Beverage
Bd.,
Control
suffering and loss
injury,
pain
such as
S.W.2d 821
The combination of
*4
consortium,
without dollar limits. As
statutory guidelines
prohibited
as to
con-
long
review is available there is
judicial
duct, availability
process
of a due
hearing,
committing the same
no inherent evil in
provisions
and
judicial
for
review serve to
administrative
fact-finding function
an
circumscribe
agency’s
area of discretion
body.
specific
limit could
In such cases
within constitutional
limits.
In Kentucky
arbitrary,
agency’s experi-
itself
be
elsewhere,
and
authority
this
of administra-
gauging
gives
ence in
similar cases
it a
tive bodies extends to the determination of
range
may help
of reasonable awards
liabilities between individuals in cases such
to an
susceptible
to make the
less
Vanhoose,
Wells Elkhorn Coal Co. v.
inexperienced
finding
unreasonable
than an
S.W.
a worker’s
jury might be.
compensation case. The substantial
trend
of authority extends administrative powers
lie
Humiliation and embarrassment
at the
adjudication
encompass
the award of
core of the evil which the
Civil
damages.
Jackson v. Concord
54 N.J. Rights
designed
If
Act was
to eradicate.
(1969);
remarks in the letter to the Division for Unemployment Insurance that he had dis IV. missed “in her best interest and the coming Cooper regard child” and that Mrs. SUFFICIENCY OF THE EVIDENCE coming ed the as an “inconvenience” child $1,000 The Commission awarded “disregard and that she showed a for her *5 damages to the movant for humiliation and condition,” simply cannot warrant a reason embarrassment caused by discrimination able finding of embаrrassment and humilia against her. The record shows substantial tion. Embarrassment and humiliation de evidence of against discrimination Mrs. Coo shame, distress, degradation, disgrace, note per on the basis pregnancy. While civil anguish, Ogilvie, etc. Perkins v. See penalties may by be assessed administrative 309, 146 which states S.W.2d bodies, Roofing, Atlas supra, the statute in phase that humiliation is a of mental an here, question 344.230(3)(h), provides guish. directly by This record does not for compensatory, punitive damages. any justi inference which detail fact would Thеrefore evidence of discrimination alone fy an award for embarrassment and humili is not the by standard which to evaluate opinion ation. I am of the the Com Thus damages: there must be evidence of actual findings clearly mission’s are erroneous. humiliation and embarrassment. On that “Anger and hurt” are not terms of embar issue the record Cooper shows that Mrs. was approved rassment and by humiliation as not embarrassed or by humiliated the fact majority opinion. itself, (TR. of the pregnancy 67), at but she apparent It is to me that the Commission angered was and hurt when she was termi using is “embarrassment vehicle of result, nated as (TR. 38). a at We find the impose punitive damages humiliation” to evidence support sufficient to the Commis the nature of a fine exceeds the finding. sion’s statutory authority granted to the Commis- For the foregoing reasons we hold that sion. 344.230(3)(h), statute KRS is constitu- Although find it necessary I do not tional and the assessment of here, question reach the constitutional I am supported is by the evidence in this case. by disturbed the statement the majority The decision of the of Appeals opinion recognizing intangible that the ele- reversed, and the case is remanded to the ments of for embarrassment and Circuit historically Court with instructions to enter assigned a humiliation are ju- ries, in conformity opinion. quantum with this and then makes a leap in jurisprudence rassed.” Humiliation and finding that such fact intangible anguish. that and similar of in- of mental simple phases are elements words, jury, pain Cooper such as what movant Donna suffering, prop- could other erly be em- left to an administrative that she was humiliated and saying is grounds “experience” opposed barrassed her awareness an “inexperienced” jury. poses This to the attention of pregnancy some called her interesting Pregnancy is a condition ex- questions people. which other explored long can be and it cannot for be fully clusively more in a future case. feminine knowledge of others. say, kept Suffice to a secret from bodies creat- ed generally operate within nar- any evidence to If there is substantial rowly adjudicating defined limits in dis- Commission, support findings of the putes and making awards. constitu- arbitrary they cannot be found tional to a jury trial should have some Coblin, Taylor Ky., will be sustained. meaning. Roofing Atlas cited in the However, when we S.W.2d 78 majority opinion, imposed involved “fines” made movant Coo- charge measure the OSHA this delegated that she was fired per against respondent OSHA was validated solely ground on the findings with pregnant because she was safety health and of the workers were we are confronted with involved. Atlas is no authority for the situ- proof to show or intimate failure of ation here at all. Although humiliation and embarrassment. when Cooper angered movant and hurt Finally, the majority opinion among finds her employment was terminated reason safeguards “provision for a full due showing pregnancy, of her there is no process hearing.” The trouble with this is There is a humiliation and embarrassment. “due process” here may require jury. great being hu- deal of difference between Accordingly I dissent. being an- miliated and embarrassed and gered and hurt. Neither includes other. STERNBERG, J., joins in this dissent. is insufficient to evidence STERNBERG, Justice, dissenting. Commission; therefore, findings charges Movants’ brief that “On June they clearly erroneous. filed complaint *6 344.230(3)(h)is an unconstitutional KRS Appellant Kentucky Commissionon Human judicial power. usurpation of Rights, alleging that the Appellee had ter- Kentucky we have a trifurcated form minated her on pregnancy, account of her executive, government, legislative, of sex, and therefore her in violation of KRS judicial 27), (Ky.Const. except in cer- § 344.040.” of applicable tain instances not here no one 344.230(2)provides: KRS any power departments these exercise “If the commissiondetermines that the belonging to either of the other properly engaged has in an unlawful 28). However departments (Ky.Const. § practice, the commission shall state its many are these commonplace natural and to findings of fact and of law conclusions constitutional mandates and however much and shall issue an requiring order the service, give lip yet we it is not so. them respondent to cease and desist from the developed there has years Of more recent unlawful practice and to take such af- government our a fourth branch known firmative action as in the of which is a com- proceedings, the carry pur- commission will out the judi- executive and legislative, bination of poses chapter....” of this cial. It is most difficult to ascertain department stops The Commissionfound that and the power “As a direct the of one being terminated, result of Respon- delegated power and of the administrative her, dent’s begins. Rights statements to her The Act and about branch Civil Complainant (KRS 344) was humiliated and embar- Ch. has a wholesome Kentucky salutary However, purpose. and irre- Constitution and also under the Seventh
spective of high the purpose, there are cer- Amendment to the United States Constitu- tain limits to tion, which even highest the we relation need to consider the design yield. must provisions these each The to other. Sev- to enth Amendment the United Con- 344.230(2) provides, as we have adopted stitution was while Sectiоn noted, heretofore in the event the the Kentucky adopted 7 of was Constitution Commission determines that the respondent in 1891. only upon peo- The restriction the engaged has in an practice, may unlawful ple Kentucky making the 1891 Consti- take affirmative action. This affirmative republic tution was that it should be action which the Commission is to delegated form and not in conflict with Constitu- the take, among things, other may require the Pryor, tion United States. v. Stone payment injury by caused 20 K.L.R. 45 S.W. practice unlawful resulting in humilia- (1898). Thus, year 1791 is the criterion tion and embarrassment. applicable here issue. Section 7 of Kentucky Constitution early In the case United States provides that “The ancient mode of trial Mesna, D.Minn., (1950), F.R.D. it was jury sacred, shall be right held jury said that a is entitled to a defendant inviolate, subject thereof remain to such only upon trial those common law matters modifications as bemay authorized this 1791. jury as to trial existed in Constitution.” Amendment Seven to the however, jury question, right of a United States provides Constitution be allegations must decided from the law, “In at suits common where the value in pleadings. Airways v. All American Vil- controversy dollars, shall twenty exceed Cedarhurst, E.D.N.Y., lage of F.R.D. 490 right of trial by shall jury, preserved, be pleadings, In the absence of we and no fact by jury tried shall other- charges, must look to the made issue any wise re-examined in court of Unit- fact, findings and the conclusions of States, ed according than to the rules of its and award law the order right common law.” by jury to trial damages. present In the case issue expanded by provision in our Rules of respondent discharge is: did states, Civil Procedure. 38.01 CR “The so, by reason of her If was she humili- sex? of trial declared thereby her dam- ated embarrassed Constitution of Kentucky given by or as age? purely simply This statute of latter issue preserved shall be of law to an issue of parties one as contrasted inviolate.” equity. court, This after quoting Section 7 of the present We must issue bear- speaking Constitution and in consider
it, Commonwealth, stated in state constitution is a ing Branham in mind that our 209 Ky. rather upon S.W. as follows: limitation the exercise of *7 grant a to the any spеcific power than of “The ancient of by jury, mode legislature. Ky., v. 507 Stephens, Holsclaw right to which is guaranteed charged one 462 crime, S.W.2d section, by the a trial supra, is by jury according to the re- forms and delegation power to the Commis- quirements law, of the common the essen- sion to find It is facts is under attack. tial features of which were and are that delegation attempted to the put upon he be his trial in a court humilia- Commission to award for justice, presided by judge, over a that and tion and embarrassment that сries out for he be tried by vicinage a of the important It is to this case that we redress. men, composed of 12 all of whom must controversy grows note that it out a agree upon a verdict.” acting body an for between private person, Since the has on challenge and behalf of a per- been 7 Kentucky Cooper, complainant private made under of the as and a Section son, Fraser, In respondent. Alisdair as negligence may together give common fact, truth and in actually grows of a out is but a cause of action single rise to what controversy between two It individuals. is in tort.”
the nature of the issue that is the criterion history emergence of the com- for determining whether it is a law common C.J.S., tort is in 86 mon law dealt with tort triable jury. particular a That this Torts, 5, as follows: § statutory proceeding did not prior exist have been com- now called torts “Acts 1791 of no The legal concern. nature of beginning of socie- very mitted from the the issue is the proper concern. Humilia- development anything like a ty, but tion and embаrrassment are the as same conception formulated a tort is clearly emotional distress. While from the comparatively recent. This recognized court has that humilia- person- times certain invasions of earliest tion and embarrassment are which torts for comprehended property rights, al or now Ogilvie, Ky. redress lies. In Perkins v. torts, recognized were under the head of 309, said, 146 S.W. we “. .. constituting wrongful as and as a basis Humiliation simply and mortification are sort, liability, for both in the civil some phases anguish; of mental and legal English systems law and in other allegation of anguish any distress mental concepts of tort still more ancient the and phase of anguish mental proven, could be confusedly crime at first intermin- were and recovery had therefor.” have gled, no was made and clear distinction repeatedly held passenger that where a private law. In the public between and ejected unlawfully may from a train he stage development next the com- mortification, recover for humiliation and tort, in a distinct mon law the nоtion of and these are compensato- elements of sense, integral and still remained unfor- ry damages. Lexington E. v. Ry. & Co. of tort is to be history mulated Lyons, 46 S.W. 20 Ky.Law sought history of the various delic- Rep. (1898); Spink v. L. & N.R.R. which, conjunction, made tual actions 52 S.W. Ky.Law Rep. recognized up the whole sum of then civil In Perkins we further wrote: “... also It is 1720, however, wrongs. By liability that, the rule where a unlawfully landlord attempt consider these was made to forcibly premises enters the and evicts specific wrongs in a work consoli- several the tenant family, and his he is liable heading them under dating general damages for the tenant’s sense of shame torts, although subject on the law having and humiliation in his wife fam systematized yet respect in no ily turned out into the streets. v. Moyer yet any neither bench nor bar had Gordon, 476; 282,14 113 Ind. N.E. Richard torts; general of a law of notion O’Brien, 243; son Ill.App. Rauma v. employs term with re- Blackstone Bailey, 191; 80 Minn. 83 N.W. Fille spect Throughout legal them. our his- Hoar, 580; brown 124Mass. Sutherland character have tory, specific torts of a Damages, 3,Vol. 866.” § increasing steadily in number.” been discussing tort, liability in it is written Movants, neither the arguing Sev- Am.Jur.2d, Torts, in 74 17: § enth to the States Con- Amendment United
“The violation of a statutory provision
nor
stitution
Section 7 of
containing
violated,
to do
this court to
mandate
an act for
refer
Constitution
another,
benefit of
or the
prohibition
three
which were decided
Su-
cases
doing
of an
his
preme
act
be to
one
United
*8
injury,
generally regarded
reliance is
giving
case
this court. Movants’
from
rise to a liability and
of the United
creating
private
put.
a
ill
The most recent
right
action,
of
ele-
so cited is Atlas
Supreme
whenever the other
Court cases
Co.,
Occupational Safety
ments
a recovery
present. Roofing
essential to
Inc. v.
The omission
a
and
430 U.S.
statutory duty
and Health Review
442,
(1977).
e.g.,
97 S.Ct.
L.Ed.2d
involving ‘public rights,’
It
tions
not
does
only
support
position
movants’
Government
is involved in its sover-
the
actually
but
speaks against
eign
it.
find no
capacity
We
an otherwise valid
against
public rights.
inhibition
the fact-
enforceable
creating
tort,
finding power
contract,
Wholly private
proper-
of the Commission. Atlas
and
Roofing
cases,
Co. is
government
an action
a
ty
range
as well as
vast
of other
against
individual,
cases,
subject
(Em-
while the
ac-
all implicated.”
are not at
tion
prosecuted
and
added.)
initiated
in the
phasis
name
Cooper against
of Donna
another in-
by movants is
case cited
for damages
dividual
growing out
al-
Coal and Lumber
v. Common
Stearns
Co.
leged
humiliation
embarrassment
wealth,
“These cases do not purely involve of this tion Commonwealth. rights.’ vate In cases which do involve ‘private only rights,’ this Court has ac- decision of the Court I would affirm the cepted factfinding an administrative Appeals affirming agency, jury, without intervention aby trial court. court, only adjunct as an to an Art. Ill analogizing the
special master and permitting it in admi- cases
ralty perform function Benson,
special master. Crowell 285, 292-98, U.S. 51-65 S.Ct. [52 L.Ed. The Court there said: 598] HUMAN ON KENTUCKY COMMISSION ‘On the common law side of the federal Clay, Appellants, RIGHTS and Ethel courts, juries only the aid of is not appropriate deemed but is required by BARBOUR, Id., Appellee. Nelson Constitution itself.’ at [52 at S.Ct. 292].” Kentucky. Supreme In emphasizing position its as to differen- 15, 1981. Dec. tiating private public rights, between As Modified Jan. 1982. Supreme United States Court further wrote: prior
“... Our cases adminis- factfinding only
trative situa- those