Lead Opinion
Opinion
In Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987)
I. Facts
Rose Brown was a temporary employee with the Peralta Community College District (Peralta) during the 1980-1981 school year. She was terminated in April of 1981. Shortly after her termination, she filed a complaint with the Department of Fair Employment and Housing (the Department), in which she alleged that her immediate supervisor had subjected her to various acts of sexual harassment. The Department filed an accusation with the Commission. Following a hearing, the Commission found in Ms. Brown’s favor and awarded her $374.55 for her out-of-pocket expenses and $20,000 “to compensate her for the damage to her dignity and esteem, and [for] her humiliation, embarrassment, emotional pain and distress.”
Peralta petitioned the superiоr court for a writ of administrative mandamus. (Code Civ. Proc., § 1094.5.) The superior court denied the petition as to the Commission’s findings of sexual harassment, but ordered stricken that part of the decision awarding Ms. Brown compensatory damages, as not within the authority of the Commission. On appeal by the Commission, the Court of Appeal, one justice dissenting, reversed. The court held that the Commission is authorized by the FEHA to award compensatory damages.
Because there is a conflict among the Courts of Appeal concerning the Commission’s authority to award compensatory damages, we granted review to secure uniformity of decision.
II. Analysis
A. Background
In Dyna-Med, supra,
The statute creates two administrative bodies: the Department, whose function is to investigate, conciliate, and seek redress for claimed discrimination (§§ 12901, 12930), and the Commission, which performs adjudicatory and rulemaking functions (§§ 12903, 12935). An aggrieved person may file a complaint with the Department (§ 12960), which must promptly investigate (§ 12963). If the Department deems a claim valid it seeks to resolve the matter—in confidence—by conference, conciliation, and persuasion. (§ 12963.7.) If that fails or seems inappropriate, the Department may issue an accusation to be heard by the Commission. (§§ 12965, subd. (a), 12969.)
If the Department fails to issue an accusation within 150 days after the filing of the complaint, or if it earlier determines not to prosecute the case and the matter is not otherwise resolved, the Department must give the complainant a “right to sue” letter. The complainant may then bring a civil suit in superior court. (§ 12965, subd. (b); Dyna-Med, supra, 43 Cal.3d at pp. 1382-1384; Commodore Home Systems, Inc. v. Superior Court (1982)
When, as in the case at bench, an accusation issues, the Commission holds a hearing. The hearings are full evidentiary proceedings governed by the California rules of evidence and conducted in accordance with the California Administrative Procedure Act (§ 11500 et seq.). (§ 12972.) The Department serves as prosecutor and advocate on the complainant’s behalf and also bears the costs of the hearing. (§ 12969.) The hearing is presided
If the Commission finds that the respondent employer or labor union has engaged in an unlawful discrimination practice, it is required to state its findings of fact and determination and to issue and serve on the parties a cease and desist order. (§ 12970, subd. (a).) In addition, pursuant to section 12970, subdivision (a), the Commission is authorized to require the respondent to “take such action, including, but not limited to, hiring, reinstatement or upgrading of employees, with or without back pay, and restoration to membership in any respondent labor organization, as, in the judgment of the commission, will effectuate the purposes of [the FEHA], and including a requirement for report of the manner of compliance.” Because it is undisputed that the Commission’s authority must come from the Act, our disposition of the instant case turns on the meaning of this latter provision.
In concluding that the statute authorized the Commission to award compensatory damages, the Court of Appeal first looked to the words of the statute. The court observed that the phrase “including, but not limited to” enlarged the Commission’s authority, and that the statute authorizes the Commission to fashion such remedies as “in the judgment of the commission” will effectuate the purposes of the Act. (§ 12970, subd. (a).) From these phrases, taken together with the legislative directive that the Act is to be “construed liberally for the accomplishment of [its] purposes” (§ 12993, subd. (a)), the court determined that the plain language of the statute allowed compensatory damages, if the judgment of the Commission is that the damages are necessary.
The Court of Appeal next considered the legislative intent in enacting the law. The purpose of the Act, the court noted, is to “provide effective remedies which will eliminate such discriminatory practices” that are contrary to the public policy of the state. (§ 12920; see Commodore Home Systems, supra,
In Dyna-Med, supra,
Seeking to distinguish Dyna-Med, supra,
Before addressing the Attorney General’s argument, we think it important to emphasize what this case is not about. There is absolutely no dispute in this case that employment discrimination, including sexual harassment as occurred here, can cause emotional distress,
B. The Statute
As in Dyna-Med, supra,
Construing section 12970 in light of established principles of statutory construction, in Dyna-Med we concluded that the Legislature had intended to authorize the Commission “to take such other remedial action as in its judgment seems appropriate to redress a particular unlawful employment practice and to prevent its recurrence, thus eliminating the practice” (
Although compensatory damages, as the Attorney General argues, may serve to make whole an employee who suffers emotional distress, and may in addition deter the respondent and other employers from future discriminatory practices, unlike the other statutory remedies that focus on corrective measures the employer can take in the workplace, this remedy goes substantially beyond the context of the employment. Compensatory damages, often amounting to tens of thousands of dollars,
“ ‘[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)
Thus, section 12987 of the FEHA, relating to housing discrimination, authorizes the Commission to order the respondent to cease and desist from the discriminatory practice and “to take such actions, as, in the judgment of the commission, will effectuate the purpose of this part, including, but not limited to, any of the following: [jf] (1) The sale or rental of the housing accommodation . . . or . . . of a like housing accommodation, . . . [fl] (2) The payment of punitive damages in an amount not to exceed one thousand dollars . . . and the payment of actual damages.” (Italics added.)
Section 19702, subdivision (e) of the Civil Service Act, relating to the Civil Service Personnel Board, similarly authorizes the board on a finding of discrimination to issue an order “requiring the appointing authority to cause the discrimination to cease and desist and to take any action, including, but not limited to, hiring, reinstatement or upgrading of employees, with or without back pay, and compensatory damages, which in the judgment of the board, will effectuate the purposes of this part.” (Italics added.) As we observed in Dyna-Med, supra, “if, as Commission argues, the nonexhaustive language of section 12970 were sufficient to embrace the authority to award damages, the specific references to damages in both the Civil Service Act and the housing section of the FEHA would be mere surplusage. ‘[Sjtatutes must be harmonized, both internally and with each other, to the extent possible. [Citations.] Interpretive constructions which render some words surplusage . . . are to be avoided. [Citations.]’ [Citation.]” (
In light of the foregoing, we are reluctant to infer that through the expansive language of section 12970 the Legislature intended by implication to grant the Commission the authority not only to award compensatory damages, but to award such damages without limit.
C. Legislative Intent
Contrary to our analysis, the Attorney General argues that the legislative intent has always been, or at the least is now, that the FEHA remedy intangible as well as tangible losses resulting from discrimination. He points to Assembly Bill No. 1163, 1987-1988 Regular Session, passed by the Legislature after our decision in Dyna-Med, supra,
The declaration of a later Legislature is of little weight in determining the relevant intent of the Legislature that enacted the law. (Teamsters v. United States (1977)
The Attorney General points also to Assembly Bill No. 1985, 1981-1982 Regular Session (Stats. 1982, ch. 1193, §2, pp. 4259-4260), which amended the FEHA expressly to prohibit harassment and to provide that “[l]oss of tangible job benefits shall not be necessary in order to establish harassment. The provisions of this subdivision are declaratory of existing law . . . .” This legislative declaration, however, does not serve to amend the remedy provisions of the FEHA. Rather, the statement confirms that harassment on a basis enumerated in the Act constitutes unlawful discrimination regardless of whether the victim can show a loss of tangible job benefits. (See Dept. Fair Emp. & Hous. v. Fresno Hilton Hotel, supra, FEHC Dec. No. 84-03, CEB 2, p. 28; Dept. Fair Emp. & Hous. v. La Victoria Tortilleria, supra, FEHC Dec. No. 85-04, CEB 13, p. 14.) This view is consistent with the Commission’s definition of sexual harassment (see fn. 2, ante), which describes activity that does not necessarily impact on thе victim’s employment status. (See also Meritor Savings Bank v. Vinson (1986)
The Attorney General argues, however, that in harassment cases, as here, where no detriment to the employment has been shown and the employee’s out-of-pocket losses are minimal, the only injury is emotional distress and the only redress is compensatory damages. This argument, we believe, takes too narrow a view of both the problem and the purpose of the Act, as well as the available remedies.
While emotional distress may be the individual employee’s only injury, the practice of harassment once proven remains to be eliminated. Consequently, if the employee’s complaint is administratively determined, on finding harassment the Commission will order such correсtive measures as will benefit both the complainant and others, including that the employer cease and desist the practice, report the manner of compliance, and take other remedial action as appropriate.
“The FEHA,” we observed in Commodore Home Systems, supra,
Under the FEHA, moreover, the Department is the plaintiff and the employee only a witness. “[T]he Department bears the expense of investigating, conciliating and, where necessary, prosecuting the action on behalf of the claimant. [Citations.] This includes the services of an attorney from the Department to try the case at no expense to the claimant. [Citation.]” (State Personnel Bd. v. Fair Employment & Housing Com., supra,
Were it otherwise, as the Attorney General argues, and the Commission were authorized tо award unlimited compensatory damages, no evident purpose would be served by providing alternative routes for resolution of claims. Nor would there be any standards to guide the Department in its determination as to the cases in which to seek compensatory damages rather than issue a “right to sue” letter. Finally and most significantly, the purpose of the FEHA to provide an efficient and expeditious avenue for elimination of discriminatory practices would be compromised as agency proceedings would come increasingly to resemble traditional lawsuits, a
We conclude, therefore, that in authorizing the Commission to take such action, “including, but not limited to,” the enumerated remedies, the Legislature intended to authorize the Commission to fashion such other corrective or equitable remedies as, in its expertise, it may devise to eliminate the discriminatory рractice and make the employee whole in relation to the employment (see Dyna-Med, supra, 43 Cal.3d at pp. 1387, 1390-1391), but that the Legislature did not, by contrast, intend to authorize the Commission to adjudicate noneconomic general damage claims traditionally awarded in judicial actions between private parties (cf. McHugh v. Santa Monica Rent Control Bd., supra,
Practical considerations support our view. As the Commission itself recognized when in 1982 it first undertook to award compensatory damages, “Courts have traditionally been reluctant to award compensatory damages of this nature [for emotional distress] in the absence of circumstances which afford some guarantee of the genuineness of the claimed injury.” (Dept. Fair Emp. & Hous. v. Ambylou Enterprises, supra, FEHC Dec. No. 82-06, CEB 3, p. 9.) Although California “has long recognized this type of injury as compensable in cases . . . which involve extreme and outrageous intentional invasions of one’s mental and emotional tranquility” {id. at p. 10), the Commission noted that in seeking to place a dollar value on the complainant’s injuries it had found little in legal authority to guide it, for the reason that “[i]t has traditionally been left to the trier of fact to assess the degree of harm suffered and to fix a monetary amount as just compensation therefor. (See, e.g., Agarwal v. Johnson [1979]
In Agarwal v. Johnson, supra, cited by the Commission, we recognized that harm suffered from emotional distress, “though less susceptible of precise measurement than more tangible pecuniary losses or physical injuries would be, is no less real or worthy of compensation.” (
Although we are not called upon in the instant case to determine whether the Commission’s award of unlimited compensatory damages violates the right to jury trial (Cal. Const., art. I, § 16) and we exрress no view on that issue (cf. McHugh v. Santa Monica Rent Control Bd., supra,
D. Sister States and Federal Statutes
As we noted in Dyna-Med, supra,
What the Attorney General overlooks is that the issue before us is not the beneficial effect of awarding compensatory damages but, rather, whether the FEHA authorizes the Commission to make such an award. Furthermore, of the state statutes at issue in the cited cases, only those of New Jersey and Massachusetts are sufficiently similar to ours to warrant comparison.
Thus, the Iowa statute authorizes “ ‘remedial action,’ ” which includes but is not limited to “ ‘damages for an injury caused by the discriminatory practice which damages shall include but are not limited to actual damages ....’” (Chauffeurs, Loc. U. 238 v. Civil Rights Com’n, supra,
The New Jersey statute, while similar to ours, was interpreted to allow compensatory damages only in such limited amounts as may be characterized as “minor or incidental” awards. (Zahorian v. Russell Fitt Real Estate Agency, supra,
Neither the New Jersey court’s limitation on the amount of damages, nor the Massachusetts court’s distinction between discrimination and retaliation, is to be found in the applicable statutes. Rather, evidently to achieve a result they found just, both courts engaged in patent judicial legislation. We are unwilling to do the same. Rather, we find persuasive the reasoning of the numerous courts in our sister states with statutes similar to ours that have concluded their statutes do not empower a commission to award nonquantifiable pain and suffering money damages for unlawful discrimination. (See Pennsylvania Human Relations Com’n v. Zamantakis (1978)
Like the foregoing state courts, federal courts, in interpreting the closely analogous remedy language of the National Labor Relations Act (29 U.S.C. § 141 et seq.) relating to unfair labor practices,
Insofar as the Attorney General argues that denial of general compensatory damages in the administrative hearing constitutes a denial of equal protection to claimants who do not file suit in court, we disposed of the argument in Dyna-Med, supra, 43 Cal.3d at pages 1401-1404.
In sum, in view of the language and purpose of the FEHA, the failure of section 12970 expressly to authorize an award of general compensatory damages, the existence in other civil rights statutes of express authorization for such awards, the unlikelihood of a legislative grant by implication of unbridled power to an administrative agency to make monetary awards without guidelines or limitations, thе cited cases from our sister states, and relevant federal precedent, we conclude that the Commission is not authorized to award compensatory damages.
The judgment of the Court of Appeal is reversed with directions to affirm the trial court’s judgment.
Lucas, C. J., Mosk, J., Eagleson, J., and Arabian, J., concurred.
Notes
All further statutory references are to the Government Code unless otherwise indicated.
The Commission has defined sexual harassment as “verbal, physical, or sexual behavior directed at an individual because of her, or his, gender.” (Dept. Fair Emp. & Hous. v. Ambylou Enterprises, Inc. (1982) No. 82-06, FEHC Precedential Decisions 1982-1983, CEB 3, p. 6; Cal. Code Regs., tit. 2, § 7287.6, subd. (b)(1).)
Concerning harassment generally, the Commission has stated that “[a]lmost any type of conduct may constitute harassment. The potential range includes, but is not limited to, conduct which is verbal (such as epithets, derogatory comments or slurs), physical (such as assault, impeding or blocking movement, or any physical interference with normal work or movement), or visual (the display of pictures, writings, objects, or photographs which are derogatory or offensive). (Cal. [Code Regs.] tit. 2, § 7287.6, subd. (b)(1).)” (Dept. Fair Emp. & Hous. v. Fresno Hilton Hotel (1984) No. 84-03, FEHC Precedential Decisions 1984-1985, CEB 2, p. 28, fn. 7.)
The Department did not seek backpay or reinstatement of Ms. Brown, who, as indicated, was a temporary employee, nor did the Commission make a finding that her termination was the result of sexual harassment.
We use the term “emotional distress” to refer to the full gamut of intangible mental suffering, including not only physical pain, but also “fright, nervousness, grief, anxiety, worry, mortification, shock, humiliation, indignity, embarrassment, apprehension, terror or ordeal.” (Capelouto v. Kaiser Foundation Hospitals (1972)
For the dollar amounts of emotional distress damages awarded by the Commission in employment cases, see, e.g., Dept. Fair Emp. & Hous. v. Ambylou Enterprises, Inc., supra, FEHC Dec. No. 82-06, CEB 3 (harassment; $15,000); Dept. Fair Emp. & Hous. v. Marriott Hotel (1983) No. 83-10, FEHC Precedential Decisions 1982-1983, CEB 11 (harassment; $5,000); Dept. Fair Emp. & Hous. v. C.E. Miller Corp., et al. (1984) No. 84-02, FEHC Precedential Decisions 1984-1985, CEB 1 (discrimination; $10,000); Dept. Fair Emp. & Hous. v. Bee Hive Answering Service et al. (1984) No. 84-16, FEHC Precedential Decisions 1984-1985, CEB 8 (harassment, discrimination and retaliation; $35,000); Dept. Fair Emp. & Hous. v. Hart and Starkey, Inc., et al. (1984) No. 84-23, FEHC Precedential Decisions 1984-1985, CEB 9 (harassment; $135,000 divided among four victims); Dept. Fair Emp. & Hous. v. La Victoria Tortilleria, Inc. (1985) No. 85-04, FEHC Precedential Decisions 1984-1985, CEB 13 (harassment; $40,000); Dept. Fair Emp. & Hous. v. California State University Sacramento (1988) No. 88-08, FEHC Precedential Decisions 1988-1989, CEB 3 (discrimination; $75,000).
Until 1981 the Commission’s authority to award damages in housing discrimination cases was limited, first to $500 and later to $1,000. (Dyna-Med, supra,
Because we resolve this case on the basis of statutory interpretation, we need not determine whether an administrative agency’s award of unlimited compensatory damages is violative of the judicial powers clause (Cal. Const., art. VI, § 1). (Cf. McHugh v. Santa Monica Rent Control Bd. (1989)
The Commission did not award compensatory damages in employment discrimination cases until 1982, when it did so pursuant to regulation promulgated in 1980 and repealed in 1985. (Dept. Fair Emp. & Hous. v. Ambylou Enterprises, Inc., supra, FEHC Dec. No. 82-06, CEB 3; see Dyna-Med, supra,
Under the current regulations, adopted in 1985, the Commission is authorized to order payment of backpay, injunctive and other equitable relief, including, but not limited to, cease and desist orders, hiring, reinstatement or upgrading of employees, and prospective relief, e.g., rightful place and front pay. (Cal. Code Regs., tit. 2, § 7286.9.) The Commission, however, continues tо award compensatory damages.
In Dept. Fair Emp. & Hous. v. Fresno Hilton Hotel, supra, FEHC Dec. No. 84-03, CEB 2, page 41, the Commission noted that “Because sexual harassment is insidious and has the ready potential to disrupt not only the life of its victims, but the entire workplace as well, it is incumbent upon employers to act affirmatively to prevent it. The Act requires that employers ‘take all reasonable steps to prevent harassment from occurring.’ [§ 12940, subd. (h).]”
In the case at bench, for example, in addition to ordering payment of compensatory damages, the Commission ordered the respondent: “1. . . . to cease and desist from discriminating against its female employees on the basis of sex; [j]] 2. To develop and disseminate a written policy regarding sexual harassment, and to conduct a training program regarding this policy at each of its campuses for all management and supervisory employees within ninety (90) days from the effective date of the Commission order herein; [][] 3. To inform all of its employees of its policy regarding sеxual harassment and of specific procedures by which employees may report incidents of sexual harassment; [f|] 4. To instruct [Ms. Brown’s supervisor] specifically, concerning his obligations and duties to employees under his supervision regarding sexual harassment; [[]] 5. . . . [f[] 6. To report to the Commission in writing describing the steps it has taken to comply with the Commission’s orders; and [fl] 7. To take any other action deemed necessary, just and proper by the Commission.”
When in 1984 the Legislature amended former subdivision (i) of section 12940 (see now § 12940, subd. (h)), it made the following statement of policy: “It is the existing policy of the State of California, as declared by the Legislature, that procedures be established by which allegations of prohibited harassment and discrimination may be filed, timely and efficiently investigated, and fairly adjudicated, and that agencies and employers be required to establish affirmative programs which include prompt and remedial internal procedures and monitoring so that worksites will be maintained free from prohibited harassment and discrimination
Another more general purpose is to lessen the burden of the trial courts and foster judicial economy by promoting the resolution of disputes by specialized boards. (Robinson v. Department of Fair Employment & Housing (1987)
Whether the Commission requires proof that the complainant actually suffered emotional distress or will simply infer such injury from the nature of the wrong is unclear. Although the Commission often cites evidence in the record as demonstrating emotional injury (e.g., Dept. Fair Emp. & Hous. v. Ambylou Enterprises, Inc., supra, FEHC Dec. No. 82-06, CEB 3, p. 10; Dept. Fair Emp. & Hous. v. Del Mar Avionics (1985) No. 85-19, FEHC Precedential Decisions 1984-1985, CEB 16, pp. 27-28, it has stated that “[i]n any discrimination case we are permitted to infer from the circumstances of the discriminatory conduct itself that emotional injury occurred. [Citations.]” (Dept. Fair Emp. & Hous. v. Bee Hive Answering Service, et al., supra, FEHC Dec. No. 84-16, CEB 8, p. 25; accord, Dept. Fair Emp. & Hous. v. Hart and Starkey, Inc., et al., supra, FEHC Dec. No. 84-23, CEB 9, p. 35 [Commission can and will infer injury].)
The Illinois statute now expressly authorizes the payment of “actual damages ... for injury or loss suffered by the complainant.” (Ill. Rev. Stat. ch. 68, par. 8A-104 [8A Lab. Rel. Rptr. (BNA) FEPM No. 633, p. 453:2626].)
The National Labor Relations Act authorizes the National Labor Relations Board to issue a cease and desist order and require the violator “to take such affirmative action including reinstatement of employees with or without back pay, as will effectuate the policies of this subchapter . . . .” (29 U.S.C. § 160(c).)
Section 706(g) of title VII of the federal Civil Rights Act authorizes the trial court to “order such affirmative 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).)
Dissenting Opinion
Having determined that the acting Dean of Students of Laney College had subjected his secretary to sexual harassment over a six-month period, including unwanted touching of her breasts and thighs, comments about her sex life, efforts to procure her as a date for himself and his friends, comments about her undergarments, continuous lewd innuendos, and finally slander of her professional competеnce because of her obduracy towards his sexual advances, the Fair Employment and Housing Commission (Commission) ordered, among other things, that the woman be compensated for her humiliation and distress by the payment of compensatory damages.
The majority hold that the Commission is not authorized to award compensatory damages, and that the abuse described above can adequately be addressed by an order to reinstate the employee, to cease and desist from discriminatory practices and to set up a policy regarding sexual harassment, with the Commission following up to see if there has been compliance.
These remedies, however, do not make the employee whole when reinstatement is not an issue. An employee may have stoically endured a period
Under the Fair Employment and Housing Act (the Act), the Commission has authority to award compensatory damages. The purpose of the Act is to provide effective remedies which will eliminate discriminatory practices. (Gov. Code, § 12920.)
The measures the Commission may order the employer to undertake all “relate to matters which serve to make the aggrieved employee whole in the context of the employment.” (Dyna-Med, Inc. v. Fair Employment & Housing Com., supra,
Compensatory damages are a completely different story. It is black letter law that compensatory damage awards are intended to make the injured party whole when the injury consists of emotional distress. (See Memphis Community School Dist. v. Stachura (1986) 477 U.S. 299, 307 [91 L.Ed.2d
As the majority willingly acknowledge, we have recognized the emotional damage incurred by those who are subjected to racist abuse and discrimination in the workplace. (Alcorn v. Anbro Engineering, Inc. (1970)
The majority maintain that although compensatory damages may serve to make the employee whole, they go substantially beyond the context of the employment. The argument is that the remedies enumerated by the statute focus on corrective measures the employer can take in the workplace, while compensatory damages compensate for intangible injury and are designed to make the victim whole in relation to the offender in the manner of traditional tort damage awards in a jury trial. “This effect, we believe, is beyond the scope of the Legislature’s intended purpose in enacting the FEHA to prevent and eliminate discrimination in the workplace.” (See maj. opn., ante, at p. 49.)
The claim that compensatory damages for emotional injury caused by sexual or racial abuse are not compensation in the context of employment is difficult to understand. Obviously the abuse occurs in the context of employment; indeed, if the abuse caused a disabling injury, the employee would be entitled to a workers’ compensation award to make her whole. (See Cole v. Fair Oaks Fire Protection Dist. (1987)
The majority express the concern that an administrative agency cannot function reliably in the inherently judicial role of assessing damages for emotional injury. (See maj. opn., ante, at pp. 56-57.) This argument expresses a lack of confidence in the competence of an administrative body to adjudicate a claim for compensatory damages. The Legislature does not share this lack of confidence; it has conferred express authority on the State Personnel Board to аward compensatory damages for discrimination in the workplace. (§ 19702, subd. (e).) The Commission itself is explicitly authorized to award compensatory damages for housing discrimination. (See § 12987.) There is no reason to think it is less competent in assessing compensatory damages in the context of employment discrimination—or to think that the Commission is less competent than the State Personnel Board to tackle the problem.
The majority also claim that to allow the Commission to award compensatory damages would undermine the ability of the Commission to function efficiently. If it were to award compensatory damages, instead of speedy and informal hearings, it is argued, there would be the expense and delay of factfinding sessions which would resemble proceedings in traditional lawsuits. The majority conclude that such lengthy, complex hearings are better left to the courts, in private civil actions brought against the employer.
In many cases, including this one, the only remedy that will be effective to make the victim whole and to deter future misconduct is a compensatory damage award. If we conclude that such an award can only be had in the judicial forum, we frustrate the legislative goal of providing administrative relief for the problem. Such a rule would encourage claimants to bypass administrative relief, or to treat it simply as a matter of form. If the claimant treats the administrative process as a matter of form, so will the employer and the conference and conciliation goals of the Act would be frustrated.
The majority maintain that to allow the Commission to award compensatory damages would be inconsistent with the purpose of the Act to encourage prompt, inexpensive, and efficient disposition of claims. But a concern with moving the cases along must coexist with a commitment to providing an effective remedy. There is a persistent and prevalent social problem of sexual harassment and discrimination in the workplace. (See, e.g., Women Lawyers and the Practice of Law in California, The Women in Law Committee, State Bar of California (1989) [finding that nearly half of survey respondents had experienced sexual harassment on the job; 88 percent perceived subtle, pervasive gender bias within the profession].) We are often taxed with being too litigious a society; one alternative to this state of affairs is to allow administrative remedies to function effectively. This the majority refuse to do.
Kennard, L, concurred.
All further statutory references are to the Government Code unless otherwise indicated.