Opinion
Certified For Partial Publication.
Certified for publication with the exception of sections IV and V.
As Modified Dec. 5, 1985.
Review Granted Jan. 23, 1986.
Opinions on pages 1-118 omitted. [*]
[220 Cal.Rptr. 159]McDonald & Allen, Stephen P. McDonald, Rosemary A. Sullivan, San Diego, for petitioner and appellant.
Gibson, Dunn & Crutcher, Willard Z. Carr, Jr., and Pamela L. Hemminger, Los Angeles, amicus curiae on behalf of appellant.
John K. Van de Kamp, Atty. Gen., Andrea S. Ordin, Chief Asst. Atty. Gen., Marian M. Johnston, Deputy Atty. Gen., for respondent.
Judith E. Kurtz, Nancy L. Davis, Feldman, Waldman & Kline, Patricia S. Mar, Martha J. Shaver, Joan Graff, Robert Barnes and Rebecca I. McKee, San Francisco, amici curiae on behalf of respondent.
WORK, Associate Justice.
Dyna-Med, Inc., appeals a judgment denying its petition for a writ of mandate directing the Fair Employment and Housing Commission (Commission) to set aside its decision finding Dyna-Med had fired Linda Olander in retaliation for her filing an employment discrimination complaint under the California Fair Employment Practice Act (FEPA, formerly Lab.Code, § 1410, et seq.), now the California Fair Employment and Housing Act (FEHA, GOV.CODE, § 12900 , et seq.), awarding her lost wages, and imposing punitive damages. The primary issue presented by this appeal is whether the Commission may award punitive damages in administrative proceedings under the FEHA. We conclude the FEHA authorizes the Commission to award punitive damages where necessary to effectuate the underlying purposes of the Act.
All statutory references are to the Government Code unless otherwise specified.
Dyna-Med further contends the Department of Fair Employment and Housing (Department) should be estopped from proceeding against it because the Department breached its statutory conciliation duty; it was denied due process when the Department was permitted to belatedly raise the issue of punitive damages; the Department and Commission misperceived the burden of proof on Dyna-Med; and the Commission's findings of fact are not supported by the evidence. For the reasons which follow, we affirm the judgment.
I
PROCEDURAL BACKGROUND
On March 13, 1978, Olander filed a complaint with the Department alleging her employer, Dyna-Med, discriminated against her with regard to wages and promotional opportunities on the basis of gender in [220 Cal.Rptr. 160] violation of the FEPA. On May 2, 1978, this complaint was resolved by means of a written settlement agreement entered into by Olander, Dyna-Med and the Department. Approximately four and one half hours after consummating the settlement agreement, Dyna-Med fired Olander.
At that time, the Department was known as the Division of Fair Employment Practices. However, the Governor's Reorganization Plan No. 1 of 1979 (effective Jan. 20, 1980) created the Department of Fair Employment and Housing and the Fair Employment and Housing Commission out of the former Division of Fair Employment Practice and the Fair Employment Practices Commission.
On May 25, 1978, Olander filed a new complaint alleging she was fired in retaliation for her original complaint. The Department formally accused Dyna-Med with retaliating against Olander in violation of former Labor Code section 1420, subdivision (e), now Government Code section 12940, subdivision (f), which prohibits an employer from discharging, expelling or discriminating against any individual because that individual had filed a complaint. An administrative hearing resulted in a proposed decision by the administrative law judge who found the accusation true and ordered Dyna-Med to pay her lost wages of $4,470 plus interest. Thereafter, the Commission allowed the parties further argument, at which time the Department specifically requested punitive damages in the amount of $15,000. The Commission then remanded the case for the taking of additional evidence on the issue of punitive damages. The administrative law judge reaffirmed his earlier findings, but dismissed the exemplary damages allegations, holding such liability under the instant circumstances would violate Dyna-Med's right to due process of law. After Dyna-Med filed a written objection, the Commission rendered its decision ordering Dyna-Med to pay Olander the lost wages plus $7,500 punitive damages. Dyna-Med's petition for a writ of mandamus directing the Commission to set aside its decision was denied.
II
FACTUAL BACKGROUND
Dyna-Med was founded in 1967 by its president Glen Hare to manufacture and distribute emergency medical products. In 1969 it initiated a news letter, Emergency Product News (EPN), as part of its marketing effort and later circulated a tabloid newspaper, Western Aviation, and a national magazine, Private Pilot. Olander was hired in March 1974 as an associate editor responsible for coordinating advertising for the publications, writing all news briefs, producing news alert portions of the magazines, and coordinating their production. Shortly after her hiring, Dyna-Med sold Western Aviation and discontinued publishing Private Pilot, leaving EPN as Dyna-Med's principle publication. EPN thus became more sophisticated with an increased subscriber base, evolving into a regularly scheduled magazine published bi-monthly.
In November 1974 Olander was promoted to co-editor of EPN at an increased wage. In May 1976, Olander was promoted to senior editor, and in October 1976 to managing editor. In October 1977, as a result of a substantial merit increase given to her by Dyna-Med, Olander began to earn $16,000 per year. In January 1978, Dyna-Med gave her a letter commending her performance, evidencing her satisfactory performance rating during her entire employment. Performance rating forms were filled out by her supervisors in March and September of 1975, 1976, 1977, and March of 1978, all of which gave her favorable evaluations.
In late 1977, she informed her supervisor, John Buchanan, then a vice-president of Dyna-Med, of her interests in being promoted to the position of publications manager for EPN and a newly acquired second magazine, Police Product News. Buchanan then discussed Olander's interest in the promotion with Hare who advised him of his intent to hire a man to the publications manager position. In December 1977, Jack Qualman was hired as a vice-president of publications, becoming Olander's supervisor. After a several month tenure working with Qualman, Olander filed her sex discrimination complaint because she believed her skills and expertise were superior to those Qualman possessed and hoped the complaint was a vehicle for obtaining the promotion she believed she had been unlawfully denied.
[220 Cal.Rptr. 161]Hare was outraged by Olander's complaint, believing her action disrupted the operations of the company. Hare and other Dyna-Med employees were extremely hostile towards Olander after the filing of the complaint. Hare drafted a written summation of the reasons for terminating Olander which included his anger at the disruption caused by her complaint.
Before executing the settlement agreement, Dyna-Med representatives told the Department representative that Olander would be discharged upon execution of the settlement agreement. The Department representative warned Dyna-Med that termination must rest on just cause and not be retaliatory in nature. Both Dyna-Med's counsel and corporate secretary, Michael Gay, and its vice-president of administration, Betty Lou Soto, knew retaliatory actions were strictly prohibited and Gay had warned Hare of possible retaliation problems in firing Olander.
Nonetheless, Hare fired Olander four and a half hours after executing the settlement agreement providing that Dyna-Med would present Olander with a letter of recommendation from Hare, afford her training for promotional opportunities, would not take discriminatory or retaliatory action for filing her sex discrimination complaint, and guarantee her continued employment so long as she met Dyna-Med's established performance standards.
III
THE COMMISSION MAY AWARD PUNITIVE DAMAGES FOR VIOLATIONS OF THE FEHA
Dyna-Med, supported by amicus Merchants and Manufacturers Association (MMA), set forth multiple challenges to the Commission's authority to award punitive damages. In essence, they contend FEHA's language and legislative history preclude awarding punitive damages at the agency level. They stress the statutory language, construed according to settled rules of statutory construction, does not empower the Commission to award punitive damages but limits it to remedial action designed to effectuate the underlying purposes of the act. Absent express legislative authorization, they argue it is the settled rule an administrative agency may not lawfully impose a penalty, whether civil or criminal in character.
Future referrals to Dyna-Med's arguments in this opinion also include those of amicus.
Moreover, emphasizing the similarity between the language of Title VII of the Federal Civil Rights Act of 1964 (Title VII) and the FEHA, Dyna-Med relies on federal court precedent holding punitive damages are not available. Additionally, noting the housing discrimination provisions of the FEHA specifically authorize the Commission to order the payment of "punitive damages in an amount not to exceed one thousand dollars ($1,000)"( § 12987, subd. (2)), it argues the express provision for such punitive damages in a parallel statutory scheme strongly suggests the omission of this remedy from the employment discrimination provisions was intentional. (See Commodore Homes Systems, Inc. v. Superior Court, 32 Cal.3d 211, 225, 185 Cal.Rptr. 270, 649 P.2d 912 (dis.).) Consequently, it contends that had the Legislature intended to allow recovery of extraordinary remedies such as punitive damages within the employment context, it could and would have expressly so provided. Dyna-Med asserts its construction is compelled by public policy, claiming injecting punitive damages within this administrative context furthers neither the general principle of equal employment opportunity, nor voluntary resolution and conciliation. Finally, they stress that procedures of administrative agencies often disregard traditional rules of evidence, severely limit discovery and are unfettered by safeguards insuring due process to litigants in the courts.
Applying the rules of construction summarized in Honey Springs Homeowners Assn. v. Board of Supervisors, 157 Cal.App.3d 1122, 1136, fn. 11, 203 Cal.Rptr. 886, we interpret the FEHA to ascertain and effectuate the purpose of the law, attempting [220 Cal.Rptr. 162] to give effect to the usual and ordinary import of the statutory language; harmonizing any provision within the context of the statutory framework as a whole; seeking a reasonable and common sense interpretation consistent with the apparent legislative purpose and intent, practical rather than technical in character and upon application resultant of wise policy rather than absurdity; and, considering generally the context, the object in view, the evils to be remedied, the history of the times, legislation upon the same subject, public policy and contemporaneous construction.
The FEPA was enacted in 1959 and recodified in 1980 as part of the FEHA. The FEHA sets forth a comprehensive scheme for combating employment discrimination, recognizing "the need to protect and safeguard the right and opportunity of all persons to seek and hold employment free from discrimination. ( § 12920.)" (Brown v. Superior Court, 37 Cal.3d 477, 485, 208 Cal.Rptr. 724, 691 P.2d 272.) The act declares that freedom from discriminatory practices in seeking, obtaining, and holding employment is a civil right. ( § 12921.) In fact, section 12920 recognizes "the practice of denying employment opportunity and discriminating the terms of employment for such reasons foments domestic strife and unrest, and deprives the state of the fullest utilization of its capacities for development and advance, and substantially and adversely affects the interests of employees, employers, and the public in general." Such discrimination is contrary to public policy ( § 12920)and is an unlawful employment practice ( § 12940). The express underlying purpose of the act is "to provide effective remedies which will eliminate such discriminatory practices." ( § 12920.) The Legislature has directed that the FEHA is to be construed "liberally" to accomplish its underlying purposes. ( § 12993.)
Generally, "[t]he purpose of the FEHA is to provide effective remedies for the vindication of constitutionally recognized civil rights, and to eliminate discriminatory practices on the basis of race, religious creed, color, national origin, ancestry, physical handicap, medical condition, marital status, sex and age. (See §§ 12920, 12921; Cal. Const., art. I, § 8.)" (State Personnel Bd. v. Fair Employment & Housing Com., 39 Cal.3d 422, 432, 217 Cal.Rptr. 16, 703 P.2d 354.)
The FEHA establishes the Department ( § 12901) to investigate, conciliate, and seek redress of claimed discrimination ( § 12930).Complaints ( § 12960) must be promptly investigated ( § 12963). If it deems a claim valid, then 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; see too § 12930.) The Commission then 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, and restoration to membership in any respondent labor organization, as, in the judgment of the commission, will effectuate the purposes of this part...." ( § 12970, subd. (a).) If the Department fails to issue an accusation within 150 days after the filing of the complaint and the matter is not otherwise resolved, it must give complainant a right-to-sue letter. Only then may that person sue in the superior court under the FEHA ( § 12965, subd (b)). (See Commodore Homes Systems, Inc. v. Superior Court, supra, 32 Cal.3d 211, 213-214, 185 Cal.Rptr. 270, 649 P.2d [220 Cal.Rptr. 163] 912; Snipes v. City of Bakersfield, 145 Cal.App.3d 861, 865-868, 193 Cal.Rptr. 760; see also State Personnel Bd. v. Fair Employment & Housing Com., supra, 39 Cal.3d 422, 432, 217 Cal.Rptr. 16, 703 P.2d 354.)
However, the court in Commodore Homes Systems, Inc. v. Superior Court, supra, noted: "Declarations by the Director and the general counsel of the Department advise that right-to-sue letters are the rule, not the exception, because the Department rarely is able to complete investigations, pursue conciliation, and issue accusations within the 150-day period. For that reason, a right-to-sue letter is issued, even in advance of 150 days, to any person who states in writing that he wants to withdraw his complaint and file a civil action. We express no opinion on the propriety of that practice...." (32 Cal.3d at p. 218, fn. 8.)
In 1980, the Commission adopted a regulation providing that "[w]hile 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." (Cal.Admin.Code, tit. 2, § 7286.9(c).) The Commission clarified the meaning of this regulation in its precedential decision, D.F.E.H. v. Ambylou Enterprises (1982) F.E.H.C. Dec. No. 82-06 at pp. 8, 9-17, where it adopted the standards normally applied by the courts in assessing exemplary and compensatory damages. It was, however, repealed on May 16, 1985 (effective thirtieth day thereafter, Cal.Admin.Register 85, No. 20) to eliminate the articulated "incorrect" legal standard for awarding exemplary or compensatory damages. The repeal was not intended to affect the Commission's authority to award such relief in appropriate cases as derived from the FEHA. (Cal.Admin.Register 85, No. 1-Z-1-4-85.)
Our conclusion the Commission is empowered to award punitive damages arises from the statutory authority summarized above. It is undisputed an administrative agency's power to award such damages must arise from express statutory authorization. Here, the Legislature delegated broad authority to the Commission to fashion appropriate remedies for unlawful employment practices in section 12970, subdivision (a):
"If the commission finds that a respondent has engaged in any unlawful practice under this part, it ... shall issue and cause to be served on the parties an order requiring such 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 this part, and including a requirement for report of the manner of compliance." (Italics added.)
Attempting to harmonize this specific provision in context of the entire statutory framework, we find in section 12920 the underlying purpose of the act is to provide effective remedies to eliminate discriminatory employment practices. Consequently, considering the legislative mandate to liberally construe the act to further these purposes ( § 12993), we conclude it has statutorily authorized the Commission to impose punitive damages where necessary to effectively remedy and eliminate unlawful FEHA employment practices. For, the Commission " 'may exercise such additional powers as are necessary for the due and efficient administration of powers expressly granted by statute, or as may fairly be implied from the statute granting the powers. [Citations.]' " (Leslie Salt Co. v. San Francisco Bay Conservation, ect. Com., 153 Cal.App.3d 605, 617, 200 Cal.Rptr. 575.)
Contrary to Dyna-Med's assertions, imposing punitive damages for deliberate violations is designed to effectively eliminate discriminatory employment practices. Potential liability for punitive damages is a substantial incentive for employers to eliminate, or refrain from committing, unlawful employment practices. Further, the possibility of "punitive damages may enhance the willingness of persons charged with violations to offer fair settlements during the conciliation process. [Fn. omitted.]" (Commodore Homes Systems, Inc. v. Superior Court, supra, 32 Cal.3d 211, 218, 185 Cal.Rptr. 270, 649 P.2d 912.) Moreover, such damages are designed not only to punish the wrongdoer, but also to set an example to deter others from similar conduct.
The facts of this case prove ordinary restitutionary remedies are often ineffective in eliminating discriminatory practices. Awards of back pay are frequently insignificant because interim earnings are deducted or offset. Also, the value of reinstatement may be negligible because by the time employment discrimination cases are resolved, the plaintiff has had to find another job. Upgrading, back pay and reinstatement in cases of retaliation may not be effective deterrents or satisfactory remedies for complainants because the original [220 Cal.Rptr. 164] work environment may no longer be conducive to continued employment. Consequently, in light of the limited remedial effect of these permissible compensatory remedies, the award of punitive damages may be the only method of fulfilling the purposes of the act, including encouraging plaintiffs to seek relief by increasing their potential recovery (see Claiborne v. Illinois Central Railroad (E.D.La.1975) 401 F.Supp. 1022, 1026, affirmed in part and vacated in part (5th Cir.1978) 583 F.2d 143).
Although the language of section 12970, subdivision (a) is broad enough to encompass the award of punitive damages, Dyna-Med challenges this construction, claiming the statutory construction doctrines of ejusdem generis, expressio unius est exclusio alterius, and noscitur a sociis compel a narrow interpretation limiting the Commission to ordering only affirmative, equitable, remedial relief.
" '[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, 25 Cal.3d 317, 331, fn. 10, 158 Cal.Rptr. 370, 599 P.2d 676, quoting Scally v. Pacific Gas & Electric Co., 23 Cal.App.3d 806, 819, 100 Cal.Rptr. 501.)
Expressio unius est exclusio alterius means that "the expression of certain things in a statute necessarily involves exclusion of other things not expressed...." (Henderson v. Mann Theatres Corp., 65 Cal.App.3d 397, 403, 135 Cal.Rptr. 266.)
Under the rule of noscitur a sociis, " 'the meaning of a word may be enlarged or restrained by reference to the object of the whole clause in which it is used.' " (People v. Stout, 18 Cal.App.3d 172, 177, 95 Cal.Rptr. 593, quoting Vilardo v. County of Sacramento, 54 Cal.App.2d 413, 420, 129 P.2d 165.)
Dyna-Med argues applying the doctrine of ejusdem generis to section 12970, subdivision (a) requires the authorizing language to be viewed in the light of the limited nature of the remedies specifically listed before the general language. In other words, because the only remedy enumerated involving the award of monetary or legal relief is the awarding of back pay, it concludes the general remedy language may not be construed to expand the authorized remedies to embrace punitive damages, because the phrase is limited by specific examples of the relief available, all of which are traditional "make-whole" remedies. It asserts the same result is arrived at by employing the other cited rules of statutory construction, because the Legislature demonstrated an intent not to authorize the exercise of any additional power unequivocally empowering the Commission to take affirmative action and then listing examples of such affirmative "make-whole" relief.
Properly analyzed, these rules do not sustain Dyna-Med's proffered statutory construction. These principles are mere guides to determining legislative intent and will not be applied to defeat the underlying legislative intent. (Cal. State Employees' Assn. v. Regents of University of California, 267 Cal.App.2d 667, 670, 73 Cal.Rptr. 449; Claiborne v. Illinois Central Railroad, supra, 401 F.Supp. 1022, 1026.) Moreover, in evaluating legislative intent from first gleaning the language of the statute, we should seek to avoid making any language mere surplusage and thus rendered useless. (Moyer v. Workmen's Comp. Appeals Bd., 10 Cal.3d 222, 230, 110 Cal.Rptr. 144, 514 P.2d 1224; Guelfi v. Marin County Employees' Retirement Assn., 145 Cal.App.3d 297, 305, 193 Cal.Rptr. 343.) Applying the proffered rules of statutory construction effectively deprives the phrase "including but not limited to" of any meaning, when in fact it evinces clear legislative intent to expand, not limit, the list of remedies. (See America National Ins. Co. v. Fair Employment & Housing Com., 32 Cal.3d 603, 611, 186 Cal.Rptr. 345, 651 P.2d 1151 (dis. opn.); State Compensation Ins. Fund v. Workers' [220 Cal.Rptr. 165] Comp. Appeals Bd., 69 Cal.App.3d 884, 890, 138 Cal.Rptr. 509.)
Dyna-Med next argues the underlying legislative history of the FEHA, and specifically section 12970, shows the Commission did not intend to allow punitive damages. It argues the FEHA was modeled after the remedy language of the National Labor Relations Act (NLRA) which has been interpreted as not permitting punitive damages; the FEHA authorizes "affirmative action including (but not limited to)" similar to the NLRA which has been construed by the courts as authorizing only remedial relief; and the Legislature's enactment of a parallel statutory scheme relating to housing discrimination expressly providing for punitive damages suggests the omission of this remedy from the employment discrimination provisions was intentional.
The cited language of subdivision (a) of section 12970 appeared originally in former Labor Code section 1426, adopted in 1959 as part of the FEPA, which was later recodified and substantially reenacted in section 12970, subdivision (a). Without question, the phrase in dispute resembles section 10(c) of the NLRA (29 U.S.C.A. § 151, et seq., § 160(c)), which directs the National Labor Relations Board (NLRB) 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 in 1938 was interpreted by the United States Supreme Court as not allowing punitive damages. (Consolidated Edison Co. v. National Labor Relations Bd. (1938) 305 U.S. 197, 59 S.Ct. 206, 219-220, 83 L.Ed. 126.)
In Edison the Supreme Court stated: "That section [29 U.S.C. § 160(c) ] authorizes the Board, when it has found the employer guilty of unfair labor practices, to require him to desist from such practices 'and to take such affirmative action, including reinstatement of employees with or without back pay, as will effectuate the policies of this Act ...'. We think that this authority to order affirmative action does not go so far as to confer punitive jurisdiction enabling the Board to inflict upon the employer any penalty it may choose because he has engaged in unfair labor practices, even though the Board may be of the opinion that the policies of the Act might be effectuated by such an order.
In 1969, the word "affirmative" preceding the word "action" was removed from section 12970, subdivision (a). (Stats.1969, ch. 526, § 1, p. 1142.) Because this language was not otherwise modified in any relevant manner by the legislature, Dyna-Med relies on federal precedent construing the NLRA as well as Title VII of the Federal Civil Rights Act of 1964 which contains similar language within section 706(g), authorizing the trial court to enjoin intentional violations of the Civil Rights Act and 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.A. § 2000e-5(g).) Its reliance on federal precedent is misplaced.
The Attorney General notes the apparent reason for this change was to distinguish the "action" which the Commission could order from the narrow definition of "affirmative actions" as educational and promotional activities which was added to FEHA's predecessor statute in 1967. (See former Labor Code § 1413, subd. (g), added by section 5 of Stats.1967, ch. 1506, § 1, at p. 3573.) This construction is also proffered by Dyna-Med and amicus MMA. Because we do not rely on that legislative modification, we do not comment on the correctness of that assertion.
"The authority of courts to grant relief in actions brought under the Equal Employment Opportunity Act of 1972 is governed by the same statutory provision which applies in actions under Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e-5(g).) [That section] authorizes courts to order such 'affirmative action as may be necessary' to remedy unlawful employment practices." (Richerson v. Jones (3rd Cir.1977) 551 F.2d 918, 923.)
We are aware the majority in Commodore Homes Systems, Inc. v. Superior Court, supra, 32 Cal.3d 211, 217, 185 Cal.Rptr. 270, 649 P.2d 912, when determining that the FEHA does not limit the relief a court may grant in a statutory suit charging employment discrimination and that all relief generally available in noncontractual actions, including punitive damages may be obtained in such a civil action under the FEHA, noted differences between the NLRA as well as section 706(g) of Title VII of the Civil Rights Act of 1964 (42 U.S.C.A. § 2000e-5(g)) which diminish the weight of federal precedent interpreting the federal statutes as not authorizing awards of either general compensatory or punitive damages. However, because we believe the distinguishment in Commodore rested substantially on the precise context of the issue the court was reviewing (i.e., the separate and distinct route to resolution of claims through private court action, and not administrative relief), we do not rely on it here.
[220 Cal.Rptr. 166]Critical differences between the NLRA and the FEHA convince us the federal precedent is not apposite. (See, e.g., Consolidated Edison Co. v. National Labor Relations Bd., supra, 305 U.S. 197, 235-236, 59 S.Ct. 206, 219-220; see also, Pearson v. Western Elec. Co., etc. (10th Cir.1976) 542 F.2d 1150, 1152; Van Hoomissen v. Xerox Corp. (N.D.Cal.1973) 368 F.Supp. 829, 837.) Granted, " '[w]hen legislation has been judicially construed and a subsequent statute on the same or an analogous subject is framed in the 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 the federal statutes. [Citations.]' " (Belridge Farms v. Agricultural Labor Relations Bd., 21 Cal.3d 551, 557, 147 Cal.Rptr. 165, 580 P.2d 665, quoting Los Angeles Met. Transit Authority v. Brotherhood of Railroad Trainmen, 54 Cal.2d 684, 688-689, 8 Cal.Rptr. 1, 355 P.2d 905; Union Oil Associates v. Johnson, 2 Cal.2d 727, 734-735, 43 P.2d 291.) However, this recognized principle of statutory construction rests upon the predicate the latter statute involved the same or an analogous subject which has similar identical language. Here, the subjects are not analogous. The underlying purposes of the NLRA and the FEHA (or FEPA) differ. The former exists to prevent industrial unrest and strife or, in other words, to promote industrial peace (Carey v. Westinghouse Corp. (1964) 375 U.S. 261, 271, 84 S.Ct. 401, 409, 11 L.Ed.2d 320), while the latter exists to eliminate specific discriminatory practices (State Personnel Bd. v. Fair Employment & Housing Com., supra, 39 Cal.3d 422, 432, 217 Cal.Rptr. 16, 703 P.2d 354). More specifically, the NLRA regulates and encourages collective bargaining between employers and employees (Carey v. Westinghouse Corp., supra, 375 U.S. at p. 271, 84 S.Ct. at p. 409; N.L.R.B. v. Pincus Bros., Inc.-Maxwell (3rd Cir.1980) 620 F.2d 367, 376; Bloom v. N.L.R.B. (D.C.Cir.1979) 603 F.2d 1015, 1019), while the FEHA makes employment discrimination against certain enumerated groups illegal. The former is designed to protect the rights of workers to organize into bargaining units and to create a cooperative atmosphere of recognition between labor and management. (See N.L.R.B. v. Knuth Bros., Inc. (7th Cir.1976) 537 F.2d 950, 957.) On the other hand, the latter is designed to protect the individual's constitutional right to be free from discrimination within the employment setting (State Personnel Bd. v. Fair Employment & Housing Com., supra, 39 Cal.3d at p. 432, 217 Cal.Rptr. 16, 703 P.2d 354), not to create a spirit of cooperation between labor and management. Instead, the FEHA was designed to provide an efficient administrative remedy to enforce an employee's right to be treated equally and to insure employers refrain from committing discriminating employment practices. Moreover, the NLRA does not provide a claimant with an analogous right to independently pursue an unfair labor practices claim in the courts upon administrative default or issuance of a right-to-sue letter, while the FEHA provides both judicial and administrative remedial procedures, requiring sensitivity to consistency in available relief.
While comparing the NLRA with Title VII, the court in Claiborne v. Illinois Central Railroad, supra, 401 F.Supp. 1022, 1024-1025, aptly explained: "Moreover, the aim of the N.L.R.A. was to establish a framework within which management and labor could resolve their conflicts, whether by collective bargaining or economic warfare, e.g., strikes and lock-outs. The N.L.R.A. was not meant to be outcome determinative, i.e., it was not to ensure that management or labor wins every conflict. It simply defined permissible methods of engaging in industrial conflict and sought to channel labor/management conflict into peaceful negotiations. Title VII is radically different. It seeks to end all employment discrimination. It does not define permissible methods of discrimination nor does it establish a framework allowing for employment discrimination. Its aim is to be outcome determinative and to see that employees who are discriminated against win every conflict.
[220 Cal.Rptr. 167]Dyna-Med's reliance on Title VII cases is similarly misplaced. (See, e.g., Shah v. Mt. Zion Hospital & Medical Ctr. (9th Cir.1981) 642 F.2d 268, 272; DeGrace v. Rumsfeld (1st Cir.1980) 614 F.2d 796, 808; Richerson v. Jones, supra, 551 F.2d 918, 926; Pearson v. Western Electric Co., supra, 542 F.2d 1150, 1152; Equal Employment Op. Com'n v. Detroit Edison Co. (6th Cir.1975) 515 F.2d 301, 308-310, vacated on other grounds 431 U.S. 951, 97 S.Ct. 2668, 53 L.Ed.2d 267.) 42 United States Code section 2000e-5(g) of Title VII significantly provides: "[T]he court may ... order such affirmative action as may be appropriate, which may include, but is not limited to, ... or any other equitable relief as the court deems appropriate." (Italics added.) Several decisions have focused on this phrase "any other equitable relief" in determining that punitive damages are not awardable, for they are traditionally not available in equity. (See Shah v. Mt. Zion Hospital & Medical Ctr., supra, 642 F.2d 268, 272; Miller v. Texas State Bd. of Barber Examiners (5th Cir.1980) 615 F.2d 650, 654; Richerson v. Jones, supra, 551 F.2d 918, 927; Equal Employment Op. Com'n v. Detroit Edison Co., supra, 515 F.2d 301, 308-310.) Consequently, these courts have understandably held the explicit reference to equitable, and the silence with regard to legal, relief suggests the unavailability of punitive damages under Title VII. In contrast, the FEHA expressly empowers the Commission to take whatever action is necessary to effectuate its policies, without an express limitation to equitable relief or complete silence as to legal relief. The absence of such qualifying language and complete silence regarding legal damages in the FEHA further dissuades us from following the cited federal precedent.
Amicus MMA contends the Title VII cases are not distinguishable here because of the inclusion of the term "equitable" in the remedies section of the statute, citing the remedy language contained in the Federal Age Discrimination and Employment Act (ADEA) (29 U.S.C. § 621, et seq.). 29 U.S.C. section 626(b) pertinently provides: "In any action brought to enforce this chapter the court shall have jurisdiction to grant such legal or equitable relief as may be appropriate to effectuate the purposes of this chapter, including without limitation judgments compelling employment, reinstatement or promotion, or enforcing the liability for amounts deemed to be unpaid minimum wages or unpaid overtime compensation under this section...."
[220 Cal.Rptr. 168] This leads us to the further consideration the FEHA provides alternative avenues of relief through either the administrative or the judicial process. As already explained, both procedures commence with the filing of a complaint with the Department. ( § 12960.) Under the judicial route, a complainant receives a right-to-sue notice and files an action in court. ( § 12965, subd. (b).) Under the administrative route, the Department investigates the complaint ( § 12963), conducts discovery ( §§ 12963.1-12963.5), attempts conciliation ( § 12963.7),files an accusation with the Commission ( § 12965, subd.(a)), and presents the case to the Commission ( § 12969).The decision, however, whether to go to court does not rest with the claimant. Rather, the Department has exclusive jurisdiction over the case for 150 days ( §§ 12960,12965, subd. (b)), and must give a right-to-sue letter to the claimant if an accusation is not issued within that time period before the claimant may file a court action. However, although this private right of action under section 12965, subdivision (b), appears to be contingent upon the Department's decision not to prosecute or the lapse of 150 days, "[a]s a practical matter ... parties who intend to pursue their case in court are given 'right to sue' letters in every case, even in advance of the 150-day limit." (State Personnel Bd. v. Fair Employment & Housing Com., supra, 39 Cal.3d 422, 433, 217 Cal.Rptr. 16, 703 P.2d 354, fn. 11.) Where the Department decides to administratively handle the case, the complainant may not pursue a civil action. (See generally Snipes v. City of Bakersfield, supra, 145 Cal.App.3d 861, 865-868, 193 Cal.Rptr. 760.) In essence, this administrative process was designed to be supported completely by the Department's own staff of investigators, attorneys and other personnel to prosecute the alleged violation rather than bestowing that responsibility upon a complainant. (See id., 39 Cal.3d at p. 432, 217 Cal.Rptr. 16, 703 P.2d 354.) In fact, the legislature originally provided for only the administrative route and later added the judicial avenue of relief, but retained the former apparently to highlight its intent the administrative process was designed to handle the bulk of the cases and its belief the administrative process would operate effectively to eliminate employment discrimination. Indeed, "[t]he FEPC has been entrusted with the duty of effectuating the declared policy of the state to protect and safeguard the rights and opportunities [220 Cal.Rptr. 169] of all persons to seek, obtain and hold employment without discrimination." (Northern Inyo Hosp. v. Fair Emp. Practices Com., 38 Cal.App.3d 14, 25, 112 Cal.Rptr. 872.)
In Commodore Homes Systems, Inc. v. Superior Court, supra, 32 Cal.3d 211, 221, 185 Cal.Rptr. 270, 649 P.2d 912, the Supreme Court held compensatory and punitive damages are available to persons who "elect" the judicial avenue of relief under the FEHA. Thus, an anomaly arises if punitive damages are not likewise available within the administrative avenue of relief. As Justice Richardson pointed out in his dissent in Commodore, supra, at page 222, 185 Cal.Rptr. 270, 649 P.2d 912,
The question whether the Commission can award compensatory and punitive damages was expressly reserved by the Supreme Court. (Commodore Homes Systems, Inc. v. Superior Court, supra, 32 Cal.3d 211, 225, 185 Cal.Rptr. 270, 649 P.2d 912; State Personnel Bd. v. Fair Employment & Housing Com., supra, 39 Cal.3d 422, 429, 434, 217 Cal.Rptr. 16, 703 P.2d 354, fn. 12.)
"it would be wholly anomalous to allow punitive damages to accusors who have been unsuccessful administratively before the commission, but to deny such damages to those whose claims have been successfully established. The result of any such disparity of remedy would be to encourage claimants to file insufficient or inadequate complaints with the commission in order to avoid or circumvent administrative proceedings in the hope of obtaining punitive damages in subsequent civil actions. Such a consequence would be contrary to FEHA's policy of eliminating employment discrimination through administrative 'conference, conciliation, and persuasion.' (Gov.Code, § 12963.7, subd. (a).)"
Moreover, given the substantial volume of complaints received by the Department, if it pursued only the strongest cases with the most egregious FEHA violations, then ironically claimants with weaker cases who could afford to pursue judicial action would have access to compensatory and exemplary damages while stronger cases heard by the Commission would not. A construction permitting this would defeat an underlying purpose for administrative relief, to wit, to provide an administrative scheme and forum for complainants to vindicate their employment rights, regardless of economic status. Indeed, public policy prohibiting employment discrimination practices cannot permit an individual claimant's affluence to determine whether he/she is entitled to effective relief. Absent the availability of similar relief, it is inevitable that equal protection violations will occur.
The depth of the impact of the possibility of disparity in available remedies is far greater than initially meets the eye with regard to the indigent or less sophisticated claimants who cannot mount or sustain a lengthy civil action. Those individuals will be denied an opportunity to obtain an award of punitive damages solely because of their economic or social circumstances. Not only is this distinction among claimants irrelevant, but it is contrary to the Legislature's intent to eliminate employment discrimination, and violates the basic principles of equal protection. Unfortunately, economic status is often strongly correlated to race, sex, and various other forms of discrimination prohibited by the FEHA. If such victims of employment discrimination, often unemployed at the time they seek relief, cannot obtain full relief through the administrative proceedings made available to them, then in essence the FEHA will foster discrimination rather than eliminate it as judicial relief to this class is not economically feasible. The Legislature intended to create an expeditious, complete, administrative remedy, not an inferior mode of relief occasionally available to the unfortunate.
Moreover, if the Commission is prohibited from awarding punitive damages while courts are free to do so, the underlying purposes of the administrative avenue of adjudication will be undermined. The Commission was created to interpret and implement the act and concomitantly to develop expertise in employment discrimination practices in California. (See § 12935; see generally State Personnel Bd. v. Fair Employment & Housing Com., supra, 39 Cal.3d 422, 432, 217 Cal.Rptr. 16, 703 P.2d 354.) By establishing an administrative avenue of relief in the Commission with such expertise, the FEHA is designed to promote efficient resolution of discrimination [220 Cal.Rptr. 170] complaints while removing additional pressure from the state's overburdened judicial system. In fact, if the Commission was prohibited from awarding punitive damages while the courts were free to do so, the Department might forego seeking administrative relief, thus delaying any relief and embroiling the discriminated person in unwanted courtroom proceedings. Further, this affects the fulfillment of the Department's role in that particular case with regard to conference, conciliation and persuasion efforts to resolve the dispute. We believe the construction we apply provides "a reasonable and common sense interpretation consistent with the apparent purpose and intention of the lawmakers, practical rather than technical in nature, and which, when applied, will result in wise policy rather than mischief or absurdity." (Honey Springs Homeowners Assn. v. Board of Supervisors, supra, 157 Cal.App.3d 1122, 1136, 203 Cal.Rptr. 886, fn. 11, United Business Com. v. City of San Diego, 91 Cal.App.3d 156, 170, 154 Cal.Rptr. 263.)
Further, the Commission is authorized to interpret the FEHA both by regulation ( § 12935(a)(1)) and a system of precedential opinions ( § 12935(h)). Although the ultimate interpretation of a statute rests with the courts, consistent administrative construction of a statute over many years, particularly when it originated with those charged with putting the statutory machinery into effect and enforcing it, is entitled to great weight and will be followed unless clearly erroneous. (Gay Law Students Assn. v. Pacific Tel. & Tel. Co., 24 Cal.3d 458, 491, 156 Cal.Rptr. 14, 595 P.2d 592; Judson Steel Corp. v. Workers' Comp. Appeals Bd., 22 Cal.3d 658, 668, 150 Cal.Rptr. 250, 586 P.2d 564; DeYoung v. City of San Diego, 147 Cal.App.3d 11, 18, 194 Cal.Rptr. 722.) Here, in 1980, the Commission promulgated title 2, California Administrative Code section 7286.9(c) providing: "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, egrecious or inexcusable." Although this regulation was repealed in 1985 as setting forth an incorrect and misleading standard, the Commission held in D.F.E.H. v. Ambylou Enterprises, Inc. (1982) FEHC Dec. No. 82-06 [CEB precedential decisions 1982-1983, CEB 3] , compensatory and punitive damages are available under the FEHA (id., at p. 8); punitive damages are designed to punish a wrongdoer and provide an example to deter others from similar conduct as are permissible in a court of law (id., at p. 13); and the availability of such damages is governed by Civil Code section 3294. (Id., at p. 13) In D.F.E.H. v. Fresno Hiton Hotel (1984) FEHC Dec. No. 84-03 [CEB precedential decisions 1983-1984, CEB 2] appeal pending, the Commission held that under section 12970, subdivision (a), it could award both compensatory (id., at pp. 34-36) and punitive (id., at pp. 36-40) damages. The Commission declared: "The purpose of awarding punitive damages is to punish or to make an example of respondent, when it is engaged in, condoned, or ratified conduct which is oppressive, fraudulent or malicious. (Civ.Code, § 3294.)" (Id., at p. 37; see also D.F.E.H. v. Donald Schriver, Inc. (1984) FEHC Dec. No. 84-07 [CEB precedential decision 1983-1984, CEB 4] appeal pending, declaring the Commission is authorized to award punitive damages (id., at pp. 17-18) and it follows the judicial standard set forth in Civil Code section 3294 (id., at pp. 18-22).)
Since the Commission first interpretated section 12970, subdivision (a) in 1980, the Legislature has amended the FEHA on numerous occasions without addressing the language in dispute regarding the Commission's authority to award appropriate effective relief. "[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. [220 Cal.Rptr. 171] State Bd. of Equalization, 54 Cal.App.3d 125, 133-134, 126 Cal.Rptr. 339; see also Coca-Cola Co. v. State Bd. of Equalization, 25 Cal.2d 918, 922, 156 P.2d 1.)
Dyna-Med relies upon a bill introduced but not enacted by the Legislature in 1976 (AB No. 3124), (Assembly Final History, Vol. 2 (1975-76 sess.) p. 1658) which would have expressly authorized the Commission to award damages in employment discrimination cases in an amount not to exceed $500. Amicus' reliance on proposed, but unpassed legislation is misplaced. (National Elevator Services, Inc. v. Department of Industrial Relations, 136 Cal.App.3d 131, 141, 186 Cal.Rptr. 165; Miles v. Workers' Comp. Appeals Bd., 67 Cal.App.3d 243, 248, fn. 4, 136 Cal.Rptr. 508; Sacramento Newspaper Guild v. Sacramento County Bd. of Suprs., 263 Cal.App.2d 41, 58, 69 Cal.Rptr. 480; see United States v. Wise (1962) 370 U.S. 405, 411, 82 S.Ct. 1354, 1358, 8 L.Ed.2d 590.)
The Legislature attempted in 1983-84 to amend section 12970, subdivision (a) to specifically authorize compensatory and punitive damages as "declaratory of existing law" in Senate Bill 2012; however, this language was removed before its enactment. (Stats.1984, ch. 1754, p. ___.)
Dyna-Med next argues the express authorization in section 12987(2) for the Commission to award actual and punitive damages up to $1,000 in housing discrimination cases and the omission of a similar provision in the employment discrimination provisions of the FEHA, suggests the Legislature did not intend punitive damages be available to remedy discriminatory employment practices. It further notes this distinction exists between the federal fair housing and fair employment statutes causing the courts to hold a specific punitive damage provision in the former implies punitive damages are not available under the employment provisions. (See Tit. VIII of the Civil Rights Act, 42 U.S.C. § 3612(c), relating to fair housing which specifically permits recovery up to $1,000 in punitive damages in comparison to the absence of any corresponding authorization for punitive damages in Tit. VII; see, e.g., Richerson v. Jones, supra, 551 F.2d 918, 927-928; Equal Employment Op. Com'n v. Detroit Edison Co., supra, 515 F.2d 301, 309.) Accordingly, it contends that had the Legislature intended to empower the Commission to award punitive damages, it would have done so in the manner it had already done so in parallel legislation. Again, we are unpersuaded.
In 1959, when the FEPA was enacted, the Legislature also enacted the Hawkins Act (former Health & Saf.Code, § 35700, et seq., enacted by Stats.1959, ch. 1681, § 1, p. 4074), prohibiting housing discrimination, and the Unruh Civil Rights Act (enacted by Stats.1959, ch. 1866, §§ 1-4, p. 4424; Civ.Code, § 51, et seq.), prohibiting discrimination in business establishments. In 1963, the Hawkins Act was replaced by the Rumford Fair Housing Act (former Health & Saf.Code, § 35700, et seq., enacted by Stats.1963, ch. 1853, §§ 1-2, p. 3823). The Hawkins Act originally permitted complainants to sue for the award of damages of not less than $500. (Former Health & Saf.Code, § 35730.) However, in 1963 when the Hawkins Act was replaced by the Rumford Act (Stats.1963, ch. 1853, § 2, p. 3823, et seq.), the Commission was empowered to order a violator to pay damages (not exceeding $500) if the Commission determined certain other delineated remedies were not available (id., at pp. 3828-3829). In 1975, the maximum damage award was increased to $1,000. (Stats.1975, ch. 280, § 1, p. 701.) In 1977, the Commission was authorized to order such action by a violator as 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 (Stats.1977, ch. 1187, § 10, p. 3893; ch. 1188, § 13.1, pp. 3905-3906.) Essentially, this statutory scheme was then carried into the FEHA when the [220 Cal.Rptr. 172] employment and housing statutory schemes were combined.
As the foregoing history illustrates, although both the housing and employment discrimination statutes are now contained within a single act, the FEHA, they followed different legislative routes of treatment resulting in totally separate, original enactments. The Legislature has consistently placed limitations on remedies available in the housing context while at the same time granting the Commission broad discretion to fashion appropriate awards in the employment context. Consequently, because the limitation on recovery within the housing context in section 12987, subdivision (a) expressly notes punitive damages only to limit the availability of such damages, the absence of any express reference to such damages in section 12970, subdivision (a) within the employment context should not be construed as a lack of authority, but rather a lack of statutory limitation on such damages.
Further, our construction of the FEHA coincides with public policy. The public commitment to eliminate discrimination as explicitly set forth in section 12920 and characterized as a civil right in section 12921, is constitutionally guaranteed by article 1, section 8 of the California Constitution. Section 8 provides: "A person may not be disqualified from entering or pursuing a business, profession, vocation, or employment because of sex, race, creed, color, or national or ethnic origin." "The right to work and the concomitant opportunity to achieve economic security and stability are essential to the pursuit of life, liberty and happiness." (Sail'er Inn v. Kirby, 5 Cal.3d 1, 17, 95 Cal.Rptr. 329, 485 P.2d 529.)
Dyna-Med next contends the absence of procedural safeguards existing within the judicial system requires a conclusion punitive damages not be available in administrative proceedings. We recognize there may be differences in general procedure, rules of evidence, discovery, etc. However, the Commission is expressly permitted to award punitive damages in housing discrimination cases. Moreover, both the Administrative Procedure Act (APA) ( § 11500, et seq.) and Code of Civil Procedure section 1094.5 provide procedural protections to insure due process concerns are satisfied. Under the circumstances of this case, the Superior Court provides a substantial evidence review of the Commission's findings and decision. (American National Ins. Co. v. Fair Employment & Housing Com., supra, 32 Cal.3d 603, 607, 186 Cal.Rptr. 345, 651 P.2d 1151; compare State Personnel Bd. v. Fair Employment & Housing Com., supra, 39 Cal.3d 422, 433, 217 Cal.Rptr. 16, 703 P.2d 354, and Kerrigan v. Fair Employment Practice Com., 91 Cal.App.3d 43, 51, 154 Cal.Rptr. 29, where a claimant who receives an adverse decision from the Commission can obtain independent judgment review; Code Civ.Proc. § 1094.5.) In any event,
"[Commission] hearings are always full evidentiary proceedings governed by the California rules of evidence and conducted in accordance with the California Administrative Procedure Act. ( § 11500, et seq.; § 12972.) A record is preserved to facilitate judicial review, and the [Commission] is required to issue a decision setting forth findings of fact and conclusions of law in every contested case. ( §§ 11517, subd. (b), 11518.) Cross-examination is, of course, permitted...." (State Personnel Bd. v. Fair Employment & Housing Com., supra, 39 Cal.3d 422, 433, 217 Cal.Rptr. 16, 703 P.2d 354.)
Finally, Dyna-Med direly predicts giving the Commission authority to award punitive damages will open a Pandora's Box concerning the authority of administrative agencies generally to award punitive damages. However, although many administrative agencies are governed by the APA, it is the FEHA, not the APA, which gives the Commission the authority to order "such action ... as, in the judgment of the commission will effectuate the purposes" of the FEHA ( § 12970, subd. (a)). If the Legislature gives an agency responsibility to protect the public and authorizes it to take the appropriate steps necessary to carry out the purposes of an act it enforces, [220 Cal.Rptr. 173] then such an agency should be authorized to determine claims for punitive damages. Whether other administrative agencies have, or will be given, such authorization can only be determined upon a review of those agencies own statutory authority, a review not necessary to this appeal.
See footnote * ante.
THE COMMISSION PLACED THE PROPER BURDEN OF PRODUCTION ON DYNA-MED
V 20
THE COMMISSION'S FINDINGS OF FACT ARE SUPPORTED BY SUBSTANTIAL EVIDENCE
Disposition:
Judgment affirmed.
STANIFORTH, Acting P.J., and WIENER, J., concur.
[*] See post, page 1698 for opinions withdrawn and case subsequent histories.
"The power to command affirmative action is remedial, not punitive, and is to be exercised in aid of the Board's authority to restrain violations and as a means of removing or avoiding the consequences of violation where those consequences are of a kind to thwart the purposes of the Act." (59 S.Ct. 206, 219-220; Commodore Homes Systems, Inc. v. Superior Court, supra, 32 Cal.3d 211, 224, 185 Cal.Rptr. 270, 649 P.2d 912 (dis. opn.).)
"Punitive damages under the N.L.R.A. are inappropriate because they would only serve to exacerbate conflict between management and labor within the permissible sphere of industrial conflict, i.e., strikes and lock-outs. The party assessed punitive damages could seek revenge in the next strike or be recalcitrant at the bargaining table. This would undermine the spirit of cooperation that is necessary for good-faith collective bargaining and the peaceful resolution of industrial conflicts. Such revenge seeking would be almost impossible to prove unless the party accused of it stated this was a reason for its action. Punitive damages might also create a sense of moral superiority in the side receiving them, discouraging that side from negotiating and avoiding strikes because it felt it was 'right.' Furthermore, punitive damages might permit the N.L.R.B. to destroy the equality of power between management and labor that Congress intended to create by the N.L.R.A. Note, Tort Remedies for Employment Discrimination Under Title VII, 54 Va.L.Rev. 491, 502 (1968).
"No such dangers exist under Title VII. Employment discrimination is not negotiable so there is no negotiating process to undermine. Where there is employment discrimination, there is no equality of power to be maintained, since employment discrimination is absolutely prohibited. Finally, there is no permissible area of conflict where revenge for punitive damages might be sought. Indeed, the possibility of punitive damages under Title VII should encourage an end to employment discrimination, infra. Accordingly, the profoundly different aims of Title VII and the N.L.R.A. should lead to a different, not similar, decision on punitive damages."
Upon reviewing the Claiborne court's decision, the Fifth Circuit stated: "Without approving or disapproving the lower court's resolution of the Title VII issue, its discussion of Title VII and the different purposes of the Civil Rights Act as compared to the [NLRA] ... is fully persuasive that an award of punitive damages does not so conflict with the purpose embodied in Title VII that it should be disallowed in a combined [Title VII and 42 U.S.C. § 1981] suit." (Claiborne v. Illinois Cent. R.R. (5th Cir.1978) 583 F.2d 143, 154.)
MMA notes that every circuit court which has considered the issue of whether the ADEA permits the disposition of punitive and pain and suffering damages have held in the negative. (See Slatin v. Stanford Research Institute (4th Cir.1979) 590 F.2d 1292; Vazquez v. Eastern Air Lines, Inc. (1st Cir.1978) 579 F.2d 107; Dean v. American Sec. Ins. Co. (5th Cir.1977) 559 F.2d 1036; Rogers v. Exxon Research & Engineering Co. (3rd Cir.1977) 550 F.2d 834; Naton v. Bank of California (9th Cir.1981) 649 F.2d 691.) In deciding pain and suffering or punitive damages are not necessary to effectuate the purposes of the ADEA, the Dean and Rogers v. Exxon cases rely heavily on the provision for liquidated damages in cases of willful violations of the ADEA. (Rogers v. Exxon, supra, at p. 840; Dean v. American Sec. Ins. Co., supra, at p. 1039.) After reviewing the legislative history, Dean states the sponsor of the bill "held the view that the liquidated damages could effectively supply the deterrent and punitive damages which both criminal penalties and punitive damages normally serve. [Fn. omitted.]" (Id., at p. 1040.) There is no analogous provision specifying the type of damages that can be awarded in cases of willful violations in the FEHA, and thus we do not find the ADEA cases controlling. We note that although three of the courts (Rogers, supra, at p. 481; Naton, supra, at p. 699, and Slatin, supra, at p. 1296) expressed concern that pain and suffering damages would negatively impact the conciliation process, the court in Vazquez, supra, expressly rejected the proposition, concluding that a contrary result might be so logically reached (i.e., the employer might be less likely to compromise a claim if he knows no pain and suffering damages can be awarded against him). (Id., at p. 111.)
During the 1981-82 legislative session, the Legislature twice declined to enact statutes which would have prohibited the Commission from awarding punitive damages in Senate Bill No. 516 and Assembly Bill 879.